[Federal Register Volume 72, Number 79 (Wednesday, April 25, 2007)]
[Proposed Rules]
[Pages 20672-20693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7647]



[[Page 20671]]

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Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 700, 740, 746 and 750



Indian and Federal Lands; Proposed Rule

Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 700, 740, 746 and 750

RIN 1029-AC53


Indian and Federal Lands

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Notice of decision not to adopt proposed rule.

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SUMMARY: We, OSM, have decided not to adopt a proposed rule that would 
have revised the definition of ``Indian lands'' for purposes of the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The 
proposed rule also would have revised both the Federal lands program 
and the Indian lands program.
    If adopted as proposed, the definition of Indian Lands would have 
included allotted lands located within an approved tribal land 
consolidation area but outside the boundaries of a reservation. Such 
allotments would then have been subject to OSM's regulatory authority 
under the Indian Lands Program. The only lands approved for coal mining 
that would have been brought within the scope of our jurisdiction if 
the proposed rule were adopted are 48 Navajo allotments overlying 
leased Federal coal within the existing McKinley Mine permit area in 
New Mexico. These allotments are currently regulated by the State.
    We conclude that the record before us neither adequately supports 
nor clearly precludes a finding of supervision in fact or in law. 
Therefore, we conclude that off-reservation Navajo allotted lands may 
be supervised by the Navajo Nation and thus may be Indian lands; but 
that any determination as to supervision of specific off-reservation 
Navajo allotted lands is more properly made on a case-by-case basis.
    In this notice of final action, we are setting out our analysis of 
the applicable law and the record before us. We are publishing this 
analysis for two reasons. First, we intend this analysis to inform the 
Navajo Nation and the Hopi Tribe and the public of the reasons for our 
decision not to adopt the proposed rule. Second, we intend this 
analysis to advise the public of how we anticipate addressing any 
pending or future actions concerning supervision of allotted lands.

DATES: This decision is effective April 25, 2007.

ADDRESSES: The administrative Record for this rulemaking is located at 
the Office of Surface Mining Reclamation and Enforcement, 
Administrative Record, Room 101, 1951 Constitution Avenue, NW., 
Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Ms. Vermell Davis, Office of Surface 
Mining Reclamation and Enforcement, 1951 Constitution Avenue, NW., 
Washington, DC 20240; Telephone (202) 208-2802. E-mail address: 
<a href="/cdn-cgi/l/email-protection#dbbcadbfbaadb2a89bb4a8b6a9bef5bcb4ad"><span class="__cf_email__" data-cfemail="781f0e1c190e110b38170b150a1d561f170e">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. What Amendments Did We Propose Concerning the Definition of 
Indian Lands? What Action Are We Now Taking on the Proposed Rule?
II. How Do We Define Indian Lands Under the Existing Rule, and What 
Lands Do We Regulate as Indian Lands Under That Definition?
III. Why Did We Propose the Rule?
IV. What Would Be the Effect of the Proposed Rule?
V. Why Have We Decided Not To Adopt the Proposed Rule?
VI. What Does the Record Establish Concerning the Basis for the 
Proposed Rule?
VII. What Is the Effect of This Notice?
VIII. How Will This Issue Be Addressed After This Notice?

I. What Amendments Did We Propose Concerning the Definition of Indian 
Lands? What Action Are We Now Taking on the Proposed Rule?

    On February 19, 1999 we proposed a rule clarifying the definition 
of Indian lands for the purposes of SMCRA, at 30 CFR 700.5. As 
discussed in more detail below, the proposed rule would have amended 
the existing definition by including as Indian lands:

    ``All allotments held in trust by the Federal government for an 
individual Indian or Indians, the Indian titles to which have not 
been extinguished, including rights-of-way running through such 
allotments, where such allotments are located within a tribal land 
consolidation area approved by the Secretary or his authorized 
representative under 25 U.S.C. 2203.''

    In the February 19, 1999 notice of proposed rulemaking, we also 
proposed amendments to our Indian lands rules at 30 CFR part 750, and 
to our Federal lands rules at 30 CFR parts 740 and 746, to reflect the 
proposed change in the definition, and to clarify the effect of the 
proposed change. These proposed changes are also discussed in more 
detail below. For a full discussion of the proposed rule, see 64 FR 
8464 (February 19, 1999).
    We have decided not to adopt any of the proposed rules, for the 
reasons discussed below.

II. How Do We Define Indian Lands Under the Existing Rule, and What 
Lands Do We Regulate as Indian Lands Under That Definition?

    The term ``Indian lands'' is defined at 30 CFR 700.5 as ``all 
lands, including mineral interests, within the exterior boundaries of 
any Federal Indian reservation, notwithstanding the issuance of any 
patent, and including rights-of-way, and all lands including mineral 
interests held in trust for or supervised by an Indian Tribe.''
    The regulatory definition is identical to the definition of Indian 
lands in SMCRA at 30 U.S.C. 1291(9). Under that definition, we have 
asserted regulatory jurisdiction over all lands located within the 
boundaries of Federal Indian reservations, and certain lands outside 
reservation boundaries where the surface or mineral estate is held in 
trust for or supervised by an Indian tribe. The off-reservation lands 
include those portions of the Crow Ceded Strip that are within the 
permit area of Westmoreland Resources' Absaloka Mine in Montana where 
the mineral estate (i.e. the coal) is held in trust for and 
beneficially owned by the Crow Tribe. We also regulate coal mining on 
certain split-estate lands in the permit area of the McKinley Mine in 
New Mexico, on which the Navajo Nation (``the Nation'' or ``the 
Navajo'') owns the surface estate and the mineral rights are privately 
owned.
    As we noted in the proposed rule, the McKinley Mine has a permit 
area of 18,692 acres. It is an active coal mining operation owned and 
operated by the Pittsburg & Midway (P&M) Coal Mining Company. The mine 
straddles the boundary of the Navajo Indian Reservation near the 
Arizona-New Mexico border. The portion of the permit area that lies 
within the Navajo reservation and on certain adjacent off-reservation 
split-estate Navajo fee lands, is regulated by OSM. The remainder of 
the mine, the so-called south area, is composed of Federal, private, 
State, and allotted lands and is regulated under a permit issued by the 
New Mexico regulatory authority (``the State'' or ``New Mexico'').
    To date, P&M has mined approximately 2,905 acres in 45 of the 48 
allotments included within the McKinley Mine permit area. Within the 
next two years, P&M plans to mine the leased Federal coal on an 
additional 18 acres in one of the previously disturbed allotments. 
Beyond this, there is no further mining planned within allotments at 
the McKinley Mine.
    We assumed regulatory authority over the Navajo fee lands at the 
McKinley

[[Page 20673]]

Mine subsequent to two 1994 district court decisions (Pittsburg & 
Midway Coal Mining Co. v. Babbitt, No. Civ. 90-730 (D.N.M. Sept. 13, 
1994); and New Mexico v. Lujan, No. 89-758-M (D.N.M. Feb. 14, 1994)). 
Those decisions upheld the Department's interpretation that such lands 
are Indian lands for purposes of SMCRA regulation because the Tribe's 
ownership of the surface estate in fee simple renders the lands 
supervised by the Tribe within the meaning of section 701(9) of SMCRA.

III. Why Did We Propose the Rule?

    The Secretary agreed in a settlement agreement to propose a rule 
clarifying the definition of Indian lands at 30 CFR 700.5. The 
settlement agreement concerned consolidated actions filed by the Hopi 
Tribe and the Navajo Nation, Hopi Indian Tribe v. Babbitt, Nos. 89-
2055, 89-2066 (D.D.C. June 20, 1995). For purposes of SMCRA and the 
implementing regulations, the Secretary agreed to propose including 
within the definition of Indian Lands ``all allotments held in trust by 
the Federal Government for an individual Indian or Indians, the Indian 
titles to which have not been extinguished, including rights-of-way 
running through such allotments, where such allotments are located 
within a tribal land consolidation area approved by the Secretary or 
his authorized representative under 25 U.S.C. 2203.''
    For purposes of this discussion, a brief history of the background 
of the proposed rule may be helpful. The Surface Mining Control and 
Reclamation Act of 1977, Public Law 95-87, 30 U.S.C. 1201 et seq., 
(SMCRA or the Act) provides statutory authority for the development of 
regulations for surface coal mining and reclamation operations. Section 
710 of SMCRA concerns the regulation of surface coal mining operations 
on Indian lands. Sections 710(d) and (e) identify the applicable SMCRA 
regulatory provisions for surface coal mining operations on Indian 
lands. The Secretary of the Interior issued a final rule on September 
28, 1984, implementing the requirements of sections 710(d) and (e) of 
SMCRA (49 FR 38462). A new subchapter, Subchapter E--Indian Lands 
Program, was added to 30 CFR Chapter VII. Subchapter E included Part 
750--Requirements for Surface Coal Mining and Reclamation Operations on 
Indian Lands, and Part 755--Tribal-Federal Intergovernmental 
Agreements.
    Our regulations at 30 CFR Part 750 specify the applicable 
requirements for coal exploration and for surface coal mining and 
reclamation operations on Indian lands, including permit review and 
permit processing; permit applications; performance standards; bonding; 
inspection and enforcement (I&E); and various other provisions. Section 
750.6 designates OSM as the SMCRA regulatory authority on Indian lands 
and describes our permitting, consultation and I&E responsibilities 
under SMCRA. Section 750.6 also specifies the Indian lands 
responsibilities of the Bureau of Land Management (BLM), the Bureau of 
Indian Affairs (BIA), and the Minerals Management Service (MMS).
    The final Indian lands rule promulgated in 1984 was challenged on 
various grounds by certain States (New Mexico ex rel. Energy and 
Minerals Dep't, Mining and Minerals Div'n v. United States Dep't of the 
Interior, Civ. No. 84-3572 (D.D.C.)), and by the National Coal 
Association and American Mining Congress (NCA v. United States Dep't of 
the Interior, Civ. No. 84-3586 (D.D.C.)).
    The Department of the Interior settled those two challenges by 
entering into separate agreements with the plaintiffs in which we 
agreed to undertake further rulemaking actions concerning the Indian 
lands program. The second round of Indian lands rulemaking led to the 
issuance of a final rule on May 22, 1989 (54 FR 22182). The 1989 final 
rule, issued jointly by OSM and BIA, amended our regulations at 30 CFR 
part 750, as well as BIA's regulations at 25 CFR part 200 governing 
leases of coal on Indian lands.
    In the preamble to the 1989 final rule, we clarified that we are 
the exclusive SMCRA regulatory authority on Indian lands until the 
United States Congress enacts legislation pursuant to section 710(a) of 
SMCRA, to allow Indian Tribes to assume full regulatory authority over 
surface coal mining operations on Indian lands, and the Tribes elect to 
do so.\1\ We also clarified that, for purposes of SMCRA regulatory 
jurisdiction, we considered off-reservation individual Indian 
allotments to be Indian lands only if an interest in the surface or 
mineral estate is held in trust for or supervised by an Indian Tribe. 
We did not, however, amend the regulatory definition of Indian lands at 
30 CFR 700.5.
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    \1\ SMCRA was amended on December 20, 2006, to provide for 
tribal primacy. As amended, SMCRA section 710 provides in relevant 
part as follows:
    ``(j)(A)(1) In General.--Notwithstanding any other provision of 
law, an Indian tribe may apply for, and obtain the approval of, a 
tribal program under section 503 regulating in whole or in part 
surface coal mining and reclamation operations on reservation land 
under the jurisdiction of the Indian tribe using the procedures of 
section 504(e).''
    Tax Relief and Health Care Act of 2006, Pub. L. 109-432, Div. C, 
Title II, Subtitle A.
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    The Hopi Tribe and the Navajo Nation challenged the 1989 final rule 
on several grounds. The Navajo Nation asserted that individual Indian 
trust allotments are Indian lands subject to OSM regulation under SMCRA 
and that the Secretary may not lawfully allow or delegate to the States 
any permitting or regulatory authority under SMCRA on such lands. The 
Tribes' challenges were subsequently consolidated and, in April 1995, 
were settled in an agreement between the Department of the Interior and 
the two plaintiff Tribes. The U.S. District Court for the District of 
Columbia approved the settlement in June 1995. See Hopi Indian Tribe v. 
Babbitt, Nos. 89-2055, 89-2066 (D.D.C. June 20, 1995).
    Under the terms of the settlement, the Secretary agreed, among 
other things, to propose a rule clarifying the definition of Indian 
lands at 30 CFR 700.5 for purposes of SMCRA and the implementing 
regulations. Specifically, the Secretary agreed to propose including as 
Indian lands ``all allotments held in trust by the Federal Government 
for an individual Indian or Indians, the Indian titles to which have 
not been extinguished, including rights-of-way running through such 
allotments, where such allotments are located within a tribal land 
consolidation area approved by the Secretary or his authorized 
representative under 25 U.S.C. 2203.''
    We proposed the clarified definition of Indian lands on February 
19, 1999 (64 FR 8464). We also proposed several changes to the Indian 
lands program at 30 CFR part 750 to make those regulations consistent 
with the proposed change in the definition of Indian lands. We further 
proposed various rule changes to the Indian lands program and to the 
Federal lands program at 30 CFR parts 740 and 746 to specify the 
applicable regulatory requirements for mining operations involving the 
mining of leased Federal coal on Indian lands. We anticipated that the 
necessity for such requirements would arise for the first time, should 
we ultimately adopt the revised definition of Indian lands.
    We held a public hearing on the proposed rule in Albuquerque, New 
Mexico on June 8, 1999. The public comment period on the proposed rule 
was originally scheduled to close on April 20, 1999, but we 
subsequently extended the comment period through June 21 after we 
received several requests for an extension. Commenters included the 
Navajo Nation, the State of New Mexico, the National Mining

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Association and Pittsburg & Midway Coal Company (McKinley Mine).

IV. What Would Be the Effect of the Proposed Rule?

A. What Lands Would Be Affected?

    If adopted as proposed, the definition of Indian Lands would 
include allotted lands located within an approved tribal land 
consolidation area but outside the boundaries of a reservation. Such 
allotments would then be subject to OSM's regulatory authority under 
the Indian Lands Program. The only lands approved for coal mining that 
would be brought within the scope of OSM's jurisdiction if the proposed 
rule were to be adopted are 48 Navajo allotments overlying leased 
Federal coal within the existing McKinley Mine permit area in New 
Mexico. These allotments are currently regulated by the State. The 
McKinley Mine permit area straddles the boundary of the Navajo 
Reservation near the Arizona-New Mexico border. The portions of the 
permit area that lie within the reservation boundaries and on an 
adjacent parcel of off-reservation Navajo fee lands, are collectively 
referred to as the north area and are regulated by OSM. The remainder 
of the mine, the so-called south area, is composed of Federal, private, 
State, and allotted lands occurring in a complex checkerboard pattern, 
and is regulated by the State of New Mexico. The allotted lands include 
all or part of 48 individual allotments, 45 of which contain leased 
Federal coal and three of which contain unleased Federal coal. No other 
coal mines in the U.S. would be affected by the proposed rule at this 
time.

B. How Would the Proposed Rule Affect Funding Under SMCRA Title V and 
Title IV, and Responsibility for AML Reclamation?

    Effect on Allocation of Title IV Funding and Responsibility for AML 
Reclamation: As we explained in the proposed rule, we collect AML 
reclamation fees from coal mining operations pursuant to Title IV of 
SMCRA and the implementing regulations. Historically, fifty percent of 
the fees from coal produced from State and private lands within a 
State, or from coal produced from Indian lands, is allocated to the 
respective State or Tribal share for use, once appropriated, on 
eligible reclamation projects and activities. The Navajo Nation, as 
well as the Crow and Hopi Tribes, have approved Title IV programs. 
However, beginning with fees collected during fiscal year 2008, States 
and Indian Tribes that have certified the completion of all coal-
related reclamation under section 411(a) of SMCRA, as the Navajo Nation 
has done, will receive payments from unappropriated funds in the U.S. 
Treasury in lieu of that allocation. Noncertified States, such as New 
Mexico, will receive their 50% allocation in the form of grants for AML 
reclamation purposes. Tax Relief and Health Care Act of 2006, Public 
Law 109-432, Div. C, Title II, Subtitle A.
    If allotted lands were designated Indian lands as proposed, the 
resulting change in the jurisdictional status of Navajo consolidation 
area allotments would mean that the Navajo Nation would receive 
Treasury payments equal to 50% of the AML reclamation fees generated by 
coal production on those allotments. The change also would mean that 
New Mexico would no longer receive 50% of the fees generated by coal 
production on those allotments.
    Effect on Allocation of Title V Funding: In the proposed rule, we 
noted that the change in definition of Indian lands, if adopted, could 
also potentially reduce the amount of annual funding that we provide to 
the State of New Mexico to support the implementation of its Title V 
regulatory program. As we explained in the proposed rule, the State's 
Title V funding formula is based, in part, on the total acreage subject 
to State regulatory jurisdiction; thus, the proposed change in the 
Indian lands definition could result in a small decrease in the State's 
annual Title V grant since it would immediately reduce the amount of 
land subject to State regulation.

V. Why Have We Decided Not To Adopt the Proposed Rule?

    With the publication of the February 19, 1999, proposed rule, we 
met our obligation under the 1995 settlement agreement to propose the 
change in the definition of Indian Lands. As discussed above, we then 
reviewed the rulemaking record and decided whether to adopt a final 
rule in consideration of all of the information in the record. We 
further considered the extent to which it was appropriate to pursue any 
other rulemaking to address the question of when allotments are 
supervised by a tribe. Finally, we evaluated further actions that are 
likely on the underlying issue.

A. How Did We Determine What Action To Take on the Proposed Rule?

    In determining what action to take in this final rulemaking, we 
were required to evaluate the administrative record to determine 
whether the record supports a determination that all allotted lands in 
an approved tribal land consolidation area are supervised by an Indian 
tribe. Effectively, to adopt the proposed rule, we would need to find 
that the Navajo Nation supervises Navajo allotments located outside the 
reservation but within the Navajo Land Consolidation Area.
    As a first step in our evaluation, we determined what is meant by 
the term ``supervised by'' in the SMCRA definition. We also extensively 
researched the legal and historical background of the definition of 
Indian Lands. As discussed below, we concluded that to ``supervise'' 
means to have the function, right, or authority to superintend, 
regulate, or oversee a person or thing. Thus in general, a tribe 
supervises lands if the tribe has the function, right, or authority to 
superintend, regulate, or oversee the lands or what is done affecting 
the lands.
    We then reviewed the record and concluded that the record does not 
support a determination that all allotted lands in an approved tribal 
land consolidation area are supervised by an Indian tribe. 
Specifically, the record does not demonstrate whether or not the Navajo 
Nation supervises the off-reservation Navajo allotted lands in the 
approved Navajo tribal land consolidation area.

B. What Are Our Reasons for Not Adopting the Proposed Rule?

1. Summary
    After reviewing the entire administrative record, including all 
comments received on the proposed rule, we conclude that, for the 
reasons set out below, the record does not support a finding that all 
allotted lands in an approved tribal land consolidation area are Indian 
lands for purposes of SMCRA; and that the record also does not support 
a conclusion one way or the other as to whether off-reservation Navajo 
allotted lands are supervised by the Nation. Further, as discussed 
below, we conclude that (1) this jurisdictional issue has arisen only 
once so far, and is unlikely to arise frequently in the future. 
(However, the proposed rule would be over-inclusive, because it would 
also apply without further analysis to any other similarly situated 
allotments that might occur; and this is not appropriate, because case-
by-case analysis of all relevant facts and law is required for any such 
determination of tribal interests.) and (2) this issue is not suited to 
a rulemaking of nationwide applicability, but rather should be 
addressed in case-by-case determinations.

[[Page 20675]]

    For the above reasons, we conclude that the record before us 
neither adequately supports nor clearly precludes a finding of 
supervision in fact or in law. Therefore, we conclude that off-
reservation Navajo allotted lands may be supervised by the Navajo 
Nation and thus may be Indian lands; but that any determination as to 
supervision of specific off-reservation Navajo allotted lands is more 
properly made on a case-by-case basis. Hence, we have decided not to 
adopt the proposed rule.
2. What Is the Meaning of ``Supervised by''?
    Statutory construction is a two-step process. In the first step, we 
ask whether the intent of Congress is clear. Chevron U.S.A., Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984), 
reh'g denied, 468 U.S. 1227 (1984) (``Chevron''). If so, we ``must give 
effect to the unambiguously expressed intent of Congress.'' Id. at 842-
43. We must ascribe to the statutory words their plain and ordinary 
meaning, absent convincing reasons to the contrary. The words are the 
best indicators of legislative intent. See, e.g., Save Our Cumberland 
Mountains v. Clark, 725 F.2d 1422 (D.C. Cir. 1982). See also Chevron, 
467 U.S. 837, 839.
    In the second step of statutory construction, if Congress has not 
``spoken to the precise question at issue,'' our construction of the 
statute must be ``permissible,'' i.e., ``rational and consistent with 
the statute.'' See Chevron, 467 U.S. at 842, 843.
a. Is the Statute Ambiguous?
    Summary: SMCRA does not define ``supervised by,'' and the 
legislative history of SMCRA is silent as to Congress' intention. 
However, a statute is not ambiguous if the terms used have a commonly 
accepted interpretation. After review of all comments on the proposed 
rule, and the materials discussed below, we conclude that, in general, 
a tribe supervises lands if the tribe has the function, right, or 
authority of superintending, regulating, or overseeing those lands. 
Thus, the Indian lands criterion, ``supervised by,'' addresses whether 
the tribe has the function, right, or authority of regulating, 
superintending, or overseeing the lands in question, and what is done 
affecting those lands. Although we found many variations in the 
definitions and synonyms ascribed to these terms, we believe that the 
thrust of relevant definitions and interpretations may be summarized as 
follows: ``supervise'' or ``supervision'' means the function, right, or 
authority of superintending, regulating, or overseeing a person or 
thing. We conclude that this is the meaning intended by Congress.
    No SMCRA Definition or SMCRA Legislative History: The term 
``supervised by'' is neither defined in SMCRA nor explained in the 
legislative history of the statute. See Valencia Energy Co., 109 IBLA 
40 (1989), aff'd, New Mexico ex rel. Energy, Minerals & Natural 
Resources Dep't v. Lujan, No. 89-758-M, 21 ILR 3113 (D.N.M. February 
14, 1994) (``Valencia'').
    Commonly Accepted Interpretation of ``Supervise'' or 
``Supervision'': To ascertain whether the term has a commonly accepted 
interpretation, and therefore is not ambiguous, we reviewed definitions 
and interpretations of the word ``supervise'' given in various 
dictionaries, a thesaurus and relevant case law. One widely used 
dictionary says ``supervise'' means: ``to direct and inspect the 
performance of; superintend.'' (The American Heritage Dictionary, 
Second College Edition (1982)). Another dictionary says ``supervision'' 
refers ``to the function of watching, guarding, or overseeing.'' (The 
American Heritage Dictionary of the English Language, Fourth Edition 
(2000)). Similarly, other definitions of ``supervise include: 
``superintend, oversee,'' (Merriam Webster's Collegiate Dictionary, 
Tenth Edition (1996)); and ``1. To direct and watch over the work and 
performance of others (synonyms: boss, overlook, oversee, superintend). 
2. To control the course of (an activity).'' (Roget's II: The New 
Thesaurus (1980)). In addition, Black's Law Dictionary defines 
``supervise'' as ``to have general oversight over, to superintend or to 
inspect.'' Black's Law Dictionary (7th ed. 1999).
    Case law interpreting the word ``supervise,'' gives some similar 
interpretations of the term. For example:

    According to the Century Dictionary, * * * the word 
``supervise'' means to oversee; have charge of, with authority to 
direct or regulate. * * * New York Life Ins. Co. v. Rhodes, 60 S.E. 
828, 831, 4 Ga. App. 25.
* * * * *
    Common meaning of ``supervise'' is to superintend which means to 
have charge and direction of, to direct course and oversee details, 
to regulate with authority, to manage, to have or exercise the 
charge and oversight of, to oversee with power of direction, to take 
care of with authority. Nederlandsch-Amerikaansche-Stoomvaart-
Mattschappij; Holland-America Line v. Vassallo, Tex. Civ. App., 365 
S.W. 2d 650, 656 [sic].
* * * * *
    The words ``supervise,'' ``superintend,'' and ``oversee,'' in 
ordinary use and common acceptance, have substantially the same 
meaning, which is to have or exercise the charge and oversight of. 
Bacigalupo v. Fleming, 102 S.E.2d 321, 325, 199 Va. 827.

Words and Phrases, ``Supervise'' (2001).

    Although we found many variations in the definitions and synonyms 
ascribed to these terms, we believe that the thrust of relevant 
definitions and interpretations may be summarized as follows: 
``supervise'' or ``supervision'' means the function, right, or 
authority of superintending, regulating, or overseeing a person or 
thing. Under the first prong of the Chevron test, and after review of 
all comments on the proposed rule, and review of the materials 
referenced in this preamble, we conclude that this is the meaning 
intended by Congress. Thus, we conclude that the statute is unambiguous 
as to the meaning of the term ``supervised by.''
b. What Is Our Alternative Interpretation of the Statute, if a Court 
Were To Disagree With Our Construction Above?
    Although we conclude that the statutory term ``supervised by'' is, 
for purposes of the proposed rule, unambiguous, we recognize that, in 
light of the variations in meaning ascribed to the term in different 
contexts, it is possible that a court might conclude differently. If a 
court did so hold, then in the absence of clear statutory language or 
express Congressional direction, OSM has the authority to make a 
reasonable or permissible interpretation of the statutory phrase. 
Congress, when it leaves ambiguity in a statute to be implemented by an 
agency, is presumed to intend that the ambiguity will be resolved by 
the agency, and intends the agency to have the discretion allowed by an 
ambiguity. Chevron, 467 U.S. 837, 843; Smiley v. Citibank, 517 U.S. 
735, 740-41 (1996).
    If a court were to disagree with our construction of the term 
``supervised by'' as used in SMCRA Sec.  701.9, as unambiguous, and 
were to rule that, on the contrary, the term is ambiguous, the term 
would have to be construed under a Chevron Step II analysis. Using that 
alternative analysis we conclude that a tribe supervises lands if the 
tribe has the function, right, or authority of superintending, 
regulating, or overseeing those lands. Thus, for purposes of our review 
of the record and action on the proposed rule, we conclude that the 
Indian lands criterion, ``supervised by,'' addresses whether the tribe 
has the right or authority to regulate, superintend, or oversee the 
lands in question (or the function of

[[Page 20676]]

doing so); or whether the tribe has the right or authority to regulate, 
superintend, or oversee what is done affecting those lands (or the 
function of doing so).
c. What Is the Relationship of Tribal Supervision to the Roles of Other 
Governments on Lands?
    A determination as to tribal supervision does not require that we 
compare state or Federal supervision versus tribal supervision in order 
to determine whether allotments are Indian lands. Rather, we determine 
whether the tribe's interests or actions suffice to constitute 
supervision for purposes of SMCRA. Nothing in the SMCRA definition 
requires that the tribe have exclusive supervision or primary 
supervision. Thus, the definition does not require that either a state 
or the Federal Government be excluded from supervising the land. 
Similarly, the statute does not require that the tribe have a greater 
supervisory interest or role than a state or the Federal Government 
does. Further, the definition does not require that the supervision 
specifically relate to SMCRA or coal mining. This is consistent with 
the fact that OSM is the SMCRA regulatory authority on designated 
Indian lands, and that a state is typically the SMCRA regulatory 
authority on other lands. Thus, either a state or OSM would have the 
primary ``supervisory'' responsibility for regulating surface coal 
mining operations and their effects on lands under SMCRA. However, the 
definition does require that a tribe supervise the lands. In this 
regard, supervision of activities that may significantly affect lands 
(such as building, grazing, and other land uses, water pollution, etc.) 
may be evidence of, or an aspect of, supervision of the lands. We 
believe that, logically, supervision of actions that affect lands is a 
basic means of supervising the affected lands.
d. Is Our Construction of ``Supervised by'' Consistent With SMCRA Case 
Law?
    Our construction of ``supervised by'' and ``supervise'' is not 
controverted by the decisions in either of the two cases concerning the 
interpretation and application of the term under SMCRA. Valencia Energy 
Co., 109 IBLA 40 (May 26, 1989) (``Valencia''), aff'd sub nom. New 
Mexico v. Lujan, No. 89-758-M (D.N.M. February 14, 1994), 21 I.L.R. 
3113 (June 1994); and Pittsburg & Midway Coal Mining Co. v. OSMRE, 115 
IBLA 148 (1990) (``Pittsburg & Midway''), aff'd, The Pittsburg & Midway 
Coal Mining Co. v. Babbitt, No. 90-730 (D.N.M. September 12, 1994). 
Neither of the two cases has led to a decision that defines the term 
specifically and unambiguously. Further, neither case has yielded a 
final decision that addresses the applicability of the term to allotted 
lands.
    Valencia addressed our interpretation that certain lands, in which 
a tribe held a fee interest in the surface, were ``Indian lands'' under 
SMCRA. One of our bases for our interpretation was that land owned by 
the Nation necessarily constituted land ``supervised by'' the Nation. 
We argued to the IBLA that, ``if ownership were not supervision, it 
would be impossible for a property interest to reach the level of 
supervision.'' The IBLA agreed. 109 IBLA 40 (1989). In its appeal to 
the IBLA, Valencia had advanced the argument that, ``[s]ince the lands 
in question are not presently within the Tribe's regulatory 
jurisdiction, * * * it is beyond the power of OSMRE to include such 
lands within the definition of ``Indian lands.'' 109 IBLA 51. Further, 
Valencia had argued that, since the Navajo Nation had conveyed all its 
rights to the surface for approximately 50 years, it had no supervisory 
authority over the land until the expiration of the lease term. Id. at 
52. In rejecting Valencia's arguments, the IBLA concluded that, ``where 
an Indian tribe owns either the mineral estate or the surface in fee of 
any land outside of the exterior boundaries of an Indian Reservation, 
such land is ``supervised by an Indian tribe'' within the meaning of 30 
U.S.C. 1201(9) (1982) and is properly subject to the Federal Program 
for Indian Lands established in 30 CFR Part 750.'' Id. at 67. The IBLA 
found that, while an OSM analysis ``provided more than a sufficient 
basis upon which to find that the Navajo Tribe did exercise supervision 
in fact, we are also of the view that supervision in law, i.e., mere 
ownership of the surface fee, was sufficient, in and of itself, to 
compel the conclusion that the lands at issue were `Indian lands.' '' 
109 IBLA at 65.
    The Valencia holding on ownership of either the mineral or surface 
estate was also followed by the IBLA in Pittsburg & Midway. Pittsburg & 
Midway concerned a consolidated set of cases, related to a permit 
issued by OSM. The permit effectively asserted jurisdiction under the 
SMCRA Indian lands program over two categories of lands: Off-
reservation lands in which the surface estate is owned by the Navajo; 
and any allotted lands held by members of the Navajo Nation that might 
be determined by OSM to be supervised by the Tribe. See Memorandum of 
the Office of Surface Mining Reclamation and Enforcement at 9-10 and 
Attachments A and B, and Memorandum of the Office of Surface Mining 
Reclamation and Enforcement on the Issue of Jurisdiction over Off-
Reservation Indian Tribal Split Estate Lands at 5 and n. 2, Pittsburg & 
Midway, 115 IBLA 148 [ref. OHA Docket No. TU-6-2-PR]. At that time, we 
did not identify any specific off-reservation allotted lands as being 
supervised by the Nation. The permittee challenged our jurisdiction to 
issue permits for any off-reservation lands within the mine. The Navajo 
Nation intervened in the case, and asserted, inter alia, that OSM had 
jurisdiction over all of the mine lands, including the off-reservation 
allotments.
    The permittee argued that ``Indian lands'' does not apply to lands 
outside a reservation where a tribe owns only the surface estate, 
because the SMCRA definition requires that the tribe also own the 
mineral estate. The IBLA held that we had jurisdiction to issue the 
permit with respect to the off-reservation lands in which the Navajo 
held only the surface estate. The IBLA also held that our 
interpretation of the definition, as set out in Valencia, was 
reasonable and therefore the definition applies to ownership of a split 
estate. The IBLA noted that it is clear that supervision is one of the 
rights encompassed in fee simple ownership of land, and rejected the 
permittee's assertion that ``supervision'' must mean unfettered 
management of land. 115 IBLA 156. Concerning one of the consolidated 
cases, the IBLA concluded that the Administrative Law Judge's decision 
did not provide a basis for the judge's determination that the off-
reservation allotted lands in the permit area are not supervised by the 
Tribe. Id. at 161. The IBLA held further that the question cannot be 
resolved in the absence of a hearing. Therefore, the IBLA remanded the 
case for a hearing and decision on the question of whether the off-
reservation allotted lands were ``Indian lands'' because they were 
``held in trust for or supervised by'' the Tribe. Id. The remanded case 
on allotted lands was subsequently stayed in 1992 pending the outcome 
of the district court appeal of the case (Pittsburg & Midway Coal 
Mining Co. v. OSM, Docket Nos. TU 6-2-PR, TU 7-6-R, TU 6-60-R, order 
entered October 16, 1992 (OHA Hearings Div.). Subsequently, it is our 
understanding that the remanded case was informally stayed by consensus 
of the parties pending final disposition of the litigation that led to 
the 1995 settlement agreement discussed above. Then the case was 
informally stayed pending final action on our proposed Indian lands 
rule published on February 19, 1999. The

[[Page 20677]]

remanded case has now been dismissed without prejudice, although OSM 
stated that it did not support the dismissal, because this rulemaking 
was pending and dismissal of the case could impede resolution of the 
``Indian lands'' status issue. Pittsburg & Midway Coal Mining Co. v. 
OSM, OSMRE's Response to Order to Show Cause, Docket Nos. TU 6-2-PR, TU 
7-6-R, TU 6-60-R (OHA Departmental Hearings Div.).
    Regardless of whether the term ``supervised by'' is construed under 
Chevron Step I or Step II, we conclude that, consistent with Valencia, 
supervision of lands may be supervision in fact or supervision in law 
(or a mixed question of fact and law). That is, supervision may exist 
either because a tribe has the right or authority to superintend, 
regulate, or oversee the lands [supervision in law]; or because the 
tribe currently or historically superintends, regulates, or oversees 
the lands [supervision in fact]; or both.
e. Is Our Construction of ``Supervised by'' Consistent With Other 
Legislative History Relevant to Congress' Intent in SMCRA?
    Our interpretation is also consistent with the interpretation of 
the phrase ``supervised by an Indian tribe'' in the legislative history 
of another bill considered by Congress at the same time it considered 
SMCRA, the Land Use Policy Planning and Assistance Act of 1973 (LUPA).
    In Valencia, in evaluating the evidence of Congress' intent on this 
issue, we noted that LUPA contained a definition of ``Indian lands'' 
similar to that in SMCRA and was drafted at approximately the same time 
as the SMCRA definition of ``Indian lands.'' In explaining the scope of 
the phrase ``supervised by an Indian tribe'' in LUPA, the Senate Report 
on the bill noted that the phrase ``is intended to cover lands which 
are Indian country for all practical purposes but which do not enjoy 
reservation status.'' S. Rep. No. 93-197, at 127 (1973). The committee 
noted that tribal land use planning programs would be largely 
meaningless if the tribes could not control key reservation tracts that 
they did not own ``or lands outside a reservation which they own or for 
which they possessed administrative responsibility.'' Id. (Emphasis 
added). From this, we argued in Valencia that lands owned by an Indian 
tribe are ``Indian lands'' under SMCRA section 701(9).
    Valencia argued that recourse to the legislative history of LUPA 
was unwarranted because it involved a different piece of legislation, 
that was never enacted, and that was considered four years before SMCRA 
was adopted. Valencia also argued that, regardless of what may have 
been contemplated by the original drafters of the language, their 
interpretation could not be said to be binding on the Congress that 
adopted SMCRA. However, the IBLA rejected all of these arguments, 
noting that: LUPA was considered by the same committee that was 
formulating an earlier version of SMCRA; the definition of ``Indian 
lands'' in the bills was identical; and in the ensuing 4 years, the 
SMCRA definition of ``Indian lands'' remained the same. The IBLA 
concluded that ``[i]t is simply logical to assume that a single 
legislative committee, reviewing two separate pieces of legislation, 
both containing the same verbatim definition, intended the same 
interpretation of that definition'' in both pieces of legislation. 109 
IBLA 50. The IBLA also noted that Valencia's argument would have had 
more force if there had been any indication in the legislative history 
of a subsequent change in Congress' interpretation, but no such change 
had occurred, despite Congress' continual reexamination of the 
provision until passage. 109 IBLA 61 [citing In re: Permanent Surface 
Mining Regulation Litigation, 627 F.2d 1346, 1364 (DC Cir. 1980)]. 
Noting that the Court of Appeals for the District of Columbia had 
relied heavily on the legislative history of LUPA in interpreting SMCRA 
section 710, the IBLA stated that recourse to the legislative history 
of LUPA to construe the phrase ``supervised by an Indian tribe'' in 
SMCRA section 701(9) was proper. 109 IBLA 62. As noted above, Valencia 
was upheld by a district court on appeal.
    The legislative history of LUPA using the phrase ``lands * * * for 
which they possessed administrative responsibility'' to refer to lands 
supervised by a tribe, is consistent with our interpretation of the 
term ``supervised by.'' However, even if it were argued that the IBLA 
erred and that the legislative history of LUPA does not establish 
beyond dispute Congress' intent with regard to the interpretation of 
``supervised by,'' we are not relying solely upon that legislative 
history to establish Congress' intent with regard to the phrase. 
Rather, as discussed above, we conclude that Congress intended the 
commonly understood meaning; namely, ``supervise'' or ``supervision'' 
means the function, right or authority of superintending, regulating, 
or overseeing a person or thing. And, as discussed above, if a court 
were to conclude that Congress' intent was not clear, we believe that 
our interpretation is reasonable.
3. Does the Record Demonstrate Navajo Nation Supervision of Off-
Reservation Allotted Lands in the Consolidation Area?
    After review of the record before us, including all comments, we 
conclude that the record does not demonstrate that, in general, all 
tribes supervise their members' allotted lands. The record does not 
demonstrate any relevant interests or functions that all tribes have on 
their tribal members' allotted lands. More specifically, as discussed 
below, the record does not clearly demonstrate whether the Navajo 
Nation supervises the Navajo allotted lands outside the Navajo 
reservation, in the approved tribal land consolidation area. The record 
does not clearly and indisputably establish the extent to which the 
Nation supervises those lands in law because of any sovereign or 
congressionally delegated authority on these allotted lands relevant to 
supervision of the lands under SMCRA. Likewise, it is not clear whether 
the Nation supervises those lands in fact because of any actions or 
programs of the Nation that amount to superintending, regulating, or 
overseeing the lands. Thus, the record does not establish whether the 
Nation supervises any allotted lands in fact or in law. Equally 
important, for any interests that the Nation may assert that it has or 
any actions that the Nation may take on allotted lands, the record does 
not clearly demonstrate relevance or significance to tribal supervision 
of those lands under SMCRA. In summary, the record is inadequate to 
support a determination as to whether any Navajo off-reservation 
allotted lands are supervised by the Navajo Nation and are thus Indian 
lands. Therefore, we conclude that the record does not support the 
proposed rule.
a. Why Is Case-by-Case Analysis Needed for Evaluation of Tribes' 
Authorities Over Allotted Lands?
    We could find no consistent rule articulated by the courts 
concerning tribal authority over any off-reservation lands or land 
uses, although in general the commentators and decisions referenced in 
this notice emphasize the need for full discussion of all relevant 
factors, including legal and factual parameters concerning a tribe's 
authority. Tribes' authorities over various types of lands have long 
been the subject of contention and confusion.

[[Page 20678]]

Some courts' decisions make general statements about tribes' 
authorities.\2\
---------------------------------------------------------------------------

    \2\ For example, decisions hold that tribal governments are 
distinct, independent political communities, [Worcester v. Georgia, 
31 U.S. (6 Pet.) 515, 559 (1832)] with inherent attributes of 
sovereignty [United States v. Mazurie, 419 U.S. 544, 557 (1975)]. 
The Supreme Court has described tribes' status as:
    `` `An anomalous one and of complex character,' '' for despite 
their partial assimilation into American culture, the tribes have 
retained `` `a semi-independent position * * * not as States, not as 
nations, not as possessed of the full attributes of sovereignty, but 
as a separate people, with the power of regulating their internal 
and social relations, and thus far not brought under the laws of the 
Union or of the State within whose limits they resided.' ''
    White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980) 
[quoting McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173 
(1973)]; see also United States v. Kagama, 118 U.S. 375, 381-82 
(1886).
---------------------------------------------------------------------------

    The Supreme Court has stated that tribes' inherent sovereign powers 
are presumed to be retained unless ``withdrawn by treaty or statute, or 
by implication as a necessary result of their dependent status.'' 
United States v. Wheeler, 435 U.S. 313, 323 (1978). See also Dean B. 
Suagee, Christopher T. Stearns, Indigenous Self-Government, 
Environmental Protection, and the Consent of the Governed: A Tribal 
Environmental Review Process, 5 Colo. J. Int'l L. & Pol'y 59, 72, n. 48 
(1994).
    Some commentators assert that tribes typically have little or no 
authority or jurisdiction over off-reservation lands.\3\ In contrast, 
other authors note that, in general, tribal authority to regulate in 
Indian country ``arises from the inherent sovereign powers of the 
native nations;'' and assert that
---------------------------------------------------------------------------

    \3\ For example, one author noted that Indian tribes derive 
powers from three principal sources: inherent tribal sovereignty, 
treaties with the United States, and delegation from the United 
States Congress [citing Montana v. United States, 450 U.S. 544, 563-
65 (1981)]. Walter E. Stern, Environmental Regulation on Indian 
Lands: A Business Perspective. 7-SPG Nat. Resources & Env't 20-21 
(1993). However, Stern concluded that, by virtue of Indian tribes' 
status within the Federal system, their inherent sovereign powers 
are diminished. ``Tribal sovereignty is subject to limitation by 
specific treaty provisions, by [Federal] statute, * * * or by 
implication due to the tribes' dependent status. [Babbitt Ford, Inc. 
v. Navajo Tribe, 710 F.2d 587, 591 (9th Cir. 1983), cert. denied, 
466 U.S. 926 (1984).]'' Id. Stern focuses on the fact that ``[t]he 
U.S. Supreme Court emphasizes there is ``a significant geographical 
component to tribal sovereignty'' [White Mountain Apache Tribe v. 
Bracker, 448 U.S. 136 (1980).]'' and concluded that, ``[a]bsent a 
treaty provision or express congressional delegation of authority, 
tribal powers extend only to the reservation boundary.'' Id. The 
author did recognize that some tribes assert jurisdiction over non-
Indian off-reservation activities, and specifically acknowledges 
that ``the Navajo Tribe asserts taxing jurisdiction over the 
``Eastern Navajo Agency'' area to the east and south of its 
reservation.'' However, the author pointed out that this assertion 
was then the subject of litigation, citing Pittsburgh [sic] & Midway 
Coal Mining Co. v. Yazzie, 909 F.2d 1387 (10th Cir. 1990). 7-SPG 
Nat. Resources & Env't 20-21 (1993).

    Any judicial determination of the sovereign powers of a native 
nation begins with the doctrine that tribes retain all inherent 
powers of national sovereignty that have not been ceded by treaty, 
excised by federal legislation, or divested by the courts as 
inconsistent with the federal government's assertion of superior 
sovereignty. The domestic test for the exercise of native 
governmental powers thus is not whether a native nation has a 
sovereign power, but whether the tribe has lost it. The initial 
existence of tribal sovereign powers is presumed.\4\
---------------------------------------------------------------------------

    \4\ Judith V. Royster and Rory Snow Arrow Fausett, Control of 
The Reservation Environment: Tribal Primacy, Federal Delegation, And 
The Limits of State Intrusion. 64 Wash. L. Rev. 581, 593-594 (1989) 
(Emphasis added; citations omitted).

    On several occasions, the Department of the Interior has stated its 
position on the question of tribal authority over property. However, 
those positions have emphasized that the powers of a particular tribe 
must be based on case-by-case detailed analysis of all legal 
authorities applicable to the tribe.\5\
---------------------------------------------------------------------------

    \5\ In one instance, the Solicitor of the Department of the 
Interior determined that, in general, the sovereign powers of the 
tribe extend over the property as well as the person of its members, 
and are not restricted to lands or funds it owns. Memorandum Opinion 
of the Solicitor, Department of the Interior, M-27781, Powers of 
Indian Tribes (55 I.D. 14, 44 (1934)); limited on other grounds, 77 
I.D. 49 (1970). However, the opinion emphasized that, while some 
generalizations can be made about what tribal powers have been 
recognized in the past, the powers of a particular tribe can only be 
ascertained by considering all legal authorities applicable to that 
tribe: ``My answer * * * then, will be general, and subject to 
correction for particular tribes in the light of * * * [any] 
treaties or statutes * * * restricting or enlarging the general 
authority of an Indian tribe.'' Memorandum Opinion, 55 I.D. 17-18.
---------------------------------------------------------------------------

    All of the evaluations of tribal authority that we have reviewed 
emphasize case-by-case detailed analysis, because the circumstances of 
each tribe are unique, relative to the tribe's sovereignty, 
jurisdiction, and interests. Those circumstances may be quite complex, 
and all relevant legal authorities and all relevant facts must be 
reviewed before a determination can be made with regard to a particular 
tribe, particular lands, or particular tribal requirements.\6\
---------------------------------------------------------------------------

    \6\ Thus, one author notes that tribal, state, and Federal 
environmental regulatory jurisdiction over natural resources 
development and other business activities, both on reservations and 
on other Indian lands, eludes precise definition because of the 
unique attributes of tribal sovereignty and the relationships 
between tribes and states, the Federal Government, and private 
business, as well as the lack of clear direction or standards of 
review from the courts. Walter E. Stern, Environmental Compliance 
Considerations For Developers of Indian Lands, 28 Land & Water L. 
Rev. 77, 78 (1993). The determination as to whether a tribe has a 
particular right, authority, or interest typically requires detailed 
analysis of complex factual and legal issues, and each analysis must 
stand on its own merits. Because of Indian tribes' ``anomalous'' 
status as ``not * * * possessed of the full attributes of 
sovereignty,'' courts struggle constantly with the extent to which 
inherent tribal powers remain, or alternatively, have been 
diminished as a result of Indian tribes' dependent status. Id., 86.
---------------------------------------------------------------------------

    A determination should include both generally and specifically 
applicable parameters, because some legislative schemes are applicable 
only to specific tribes or groups of tribes. ``Accordingly, in addition 
to general principles of federal Indian law, one must consider any 
statutes, treaties, judicial decisions, or executive actions that may 
be directed to a particular tribe or to a class of tribes.'' Stern, 
supra note 2, at 85 & n. 85. Further, courts generally inquire into all 
of the facts and circumstances behind each assertion of tribal 
authority. Because of Indian tribes' dependent status, the Supreme 
Court has found limitations on tribal authority, which depend on the 
context in which the issue arises. Id, at 85-86.
b. What Is the Relevance of ``Indian Country'' Law?
    As discussed below, it is now settled law that off-reservation 
allotted lands are a category of lands included in ``Indian country.'' 
A number of judicial decisions address the Indian country status of 
off-reservation lands in which Indians have interests, as well as the 
interests of the Federal Government and Indian tribes in those lands. 
We have reviewed the decisions concerning Indian country status to 
evaluate whether they aid in determining the interests of tribes 
generally in allotted lands. We found some useful guidance, but could 
find no cases that clearly establish any generally applicable 
conclusions as to any interests that all Indian tribes might hold in 
Indian country. Rather, the reverse is true: as discussed herein, any 
determination as to the interests of any tribe in lands must be made on 
a case-by-case basis, considering all relevant facts and law.
    The proposed rule language concerning allotted lands is somewhat 
similar to the language addressing allotted lands in the definition of 
``Indian country'' in 18 U.S.C. 1151. That provision states that:

    [T]he term ``Indian country'' * * * means (a) All land within 
the limits of any Indian reservation under the jurisdiction of the 
United States Government * * *, (b) all dependent Indian communities 
within the borders of the United States * * *, and (c) all Indian 
allotments, the Indian titles to which have not been extinguished, 
including rights-of-way running through the same.

    Under this provision, for purposes of federal criminal and civil 
jurisdiction,

[[Page 20679]]

Indian allotments are Indian country. By its terms, the definition 
relates only to federal criminal jurisdiction. It establishes the basis 
for asserting federal criminal jurisdiction over ``Indian country.'' 
However, it has been recognized as also generally applicable to 
questions of Federal civil jurisdiction. See Alaska v. Native Village 
of Venetie Tribal Gov't, 522 U.S. 520, 527 (1998) (``Venetie''); and 
DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.S. 
425, 427, n. 2 (1975).
    The U.S. Supreme Court has noted that allotments are parcels 
created out of a diminished Indian reservation and held in trust by the 
Federal Government for the benefit of individual Indians. Venetie, 522 
U.S. 529. The court's decision stated that the original reservation in 
Venetie was Indian country ``simply because it had been validly set 
apart for the use of the Indians as such, under the superintendence of 
the Government'' [citing United States v. Pelican, 232 U.S. 442, at 449 
(1914)] (emphasis in original). The decision then concluded that, after 
the reservation's diminishment, the allotments continued to be Indian 
country, as ``the lands remained Indian lands set apart for Indians 
under governmental care; * * * we are unable to find ground for the 
conclusion that they became other than Indian country through the 
distribution into separate holdings, the Government retaining 
control.'' Id. Venetie noted that the Supreme Court in numerous cases 
has relied on a finding of both a Federal set-aside [a setting apart of 
lands for Indians] and Federal superintendence in determining that 
Indian lands are Indian country, in order to confirm Federal 
jurisdiction over them. 522 U.S. 530. The court pointed out that 
``[t]he federal set-aside requirement ensures that the land in question 
is occupied by an ``Indian community.'' 522 U.S. 531. The second 
requirement, of Federal superintendence, ``guarantees that the Indian 
community is sufficiently ``dependent'' on the Federal Government that 
the Federal Government and the Indians involved, rather than the 
states, are to exercise primary jurisdiction over the land in question. 
Id. The court found that the lands in question in Venetie were no 
longer superintended by the Federal Government. 522 U.S. 533.
    The Tribe had contended that the requisite Federal superintendence 
was present because the Federal Government provides ``desperately 
needed health, social, welfare, and economic programs'' to the Tribe. 
The court rejected this argument, stating that ``health, education, and 
welfare benefits are merely forms of general federal aid; * * * they 
are not indicia of active Federal control over the Tribe's land 
sufficient to support a finding of Federal superintendence. 522 U.S. 
534 (emphasis added). The court thus drew a distinction between 
providing government aid or service to Indians, on the one hand, and 
controlling land sufficient to establish superintendence of that land, 
on the other.
    The Supreme Court has analyzed what is required for Federal 
``superintendence'' of allotted lands for purposes of 18 U.S.C. 1151. 
Venetie, supra. We believe the logic of the Venetie analysis is 
applicable to evaluation of tribal supervision of lands under SMCRA 
701(9). That is, analysis of whether a tribe supervises allotted lands 
under SMCRA should address not whether the tribe provides services or 
aid to the allottees, but rather whether the tribe supervises the 
allotted lands in question.
c. Why Is Further Information Needed?
    The record does not clearly or persuasively establish whether or 
how any Navajo tribal authorities, rights, or functions, singly or 
cumulatively, constitute tribal supervision of Navajo allotted lands, 
in law or in fact, either as a result of tribal sovereignty or as a 
result of delegation from Congress. It is possible that, taken 
cumulatively, the Nation's rights, authority, or functions on tribal 
members' allotted lands may properly be deemed supervision of those 
lands in fact or in law, or both. Information relevant to analysis of 
tribal supervision in law might include, for example: Treaties, 
executive orders, Federal statutes, and Federal and tribal case law or 
tradition relevant to a tribe's interests in or authority over the 
allotted lands; and any other relevant requirements and programs of a 
tribe. Further, historical information about the allotted lands and 
tribal activities affecting the lands may indicate whether a tribe has 
supervised the allotted lands in fact. However, as discussed below, the 
record provides relatively little relevant and clearly persuasive 
information concerning whether the Navajo Nation supervises off-
reservation allotted lands.
    The 1995 Navajo Nation Code (NNC) does provide that it applies to 
allotted lands. The 1995 NNC provides that:

    The Territorial jurisdiction of the Navajo Nation shall extend 
to Navajo Indian Country, defined as all land within the exterior 
boundaries of the Navajo Indian Reservation or of the Eastern Navajo 
Agency, all land within the limits of dependent Navajo Indian 
communities, all Navajo Indian allotments, and all other land held 
in trust for, owned in fee by, or leased by the United States to the 
Navajo Tribe or any Band of Navajo Indians.

NNC Title 7, 254 (1995).

    However, as discussed below, the record does not clearly establish 
what authorities or rights the Nation currently asserts in or on 
allotted lands in the consolidation area, what legal support there is 
for those authorities or rights, or what actions the Nation takes to 
implement those authorities or rights on allotted lands. It is not 
clear from the record before us on the proposed rule what questions, if 
any, there may be concerning the authority or rights of the Nation over 
off-reservation allotted lands. Equally importantly, it remains unclear 
whether or for what reasons any such authorities, rights, or actions 
should be deemed tribal supervision of allotted lands. And it is 
unclear whether the Navajo Nation asserts supervision in fact, in law, 
or both, over the allotted lands. Some of the programs and authorities 
the Nation asserts or had previously asserted it has on allotted lands, 
such as ``treatment as a state'' under the Safe Drinking Water Act (42 
U.S.C. 300f et seq.), and authority to tax, are asserted by other 
commenters to be non-existent, unexercised, or too tangential or 
otherwise irrelevant to the issue of supervision of these lands for 
purposes of SMCRA. The record includes little or no current 
documentation or discussion of scope, purpose, effect, authority for, 
or implementation of these programs, or any others. We have found no 
judicial decisions or other authority that clearly establish the nature 
or extent of any Navajo Nation authority or rights over all Navajo 
allotments in the consolidation area. Thus, the record is inadequate to 
support a determination as to what supervision, if any, the Nation may 
have of the off-reservation allotted lands.
4. Is the Proposed Rule Appropriate in Scope? Is This Issue Likely To 
Be Raised for Other Allotted Lands in the Foreseeable Future?
    We considered whether the specific question raised by the proposed 
rule would likely be raised for other lands in the future. A 
combination of unusual factors would be needed for this particular 
jurisdictional issue to arise; allotments would have to be outside the 
reservation, overlie coal reserves and be within a recognized Indian 
land consolidation area. We are not aware of any contemplated mining 
operations that would be likely to raise the issue in the foreseeable 
future.

[[Page 20680]]

    Nonetheless, in the future it is possible that other tribal land 
consolidation areas could be approved that would include allotted lands 
and thus would be covered by the proposed rule. Under the proposed 
rule, those allotted lands would be deemed to be supervised by the 
tribe in question. However, we have no basis for determining at this 
time whether any such allotted lands would be supervised by a tribe. 
Such a determination would be particularly inappropriate in view of the 
fact that, as discussed infra, the Federal Government makes 
determinations about the authority of a particular tribe on particular 
lands on a case-by-case basis, based on consideration of all relevant 
law and facts concerning the tribe and lands in question.
5. What Procedural Concerns Does the Proposed Rule Raise?
    For determinations in which witness expertise or personal knowledge 
may be critical, or in which evidentiary weight or credibility may be 
important, an administrative proceeding should afford interested 
persons the opportunity to present relevant and probative information 
or testimony and to comment or cross-examine as appropriate, and thus 
to address the weight and credence to be given to the record before the 
decision maker. For several reasons, we believe such opportunity may be 
particularly important concerning the issues in the proposed rule. The 
issues and facts in this matter are complex and contentious, and the 
accuracy and adequacy of a number of commenters' contentions has been 
called into question. The proposed rule would result in a change in 
regulatory primacy over Navajo allotted lands under SMCRA, and any such 
change might affect the responsibilities, funding, and costs of 
interested persons, including the State, the Navajo Nation, and the 
McKinley mine operator. Further, there is a paucity of relevant and 
dispositive documentation in the record before us. We anticipate that 
case-by-case determinations will provide all interested persons with 
ample notice and opportunity to participate, and thus will allow 
development of a more complete record and a more informed decision.
6. Is National Rulemaking Appropriate on This Matter?
    Does this issue warrant a change in nationwide regulations? We do 
not think it does, for the reasons discussed above, and for the 
following reasons. Ordinarily, questions requiring national rulemaking 
involve issues that arise with some frequency and are of importance in 
multiple areas of the country. We know of only one instance where this 
issue has arisen--at the McKinley Mine in New Mexico. In the years that 
we have sought to address this issue, including the many months that it 
took to prepare the proposed rule and the more than eight years since 
the proposed rule was published, we have yet to learn of another 
instance where this jurisdictional issue is relevant. We do not believe 
that creating nationally applicable regulations to resolve a local and 
infrequently arising question is an appropriate use of the Federal 
regulatory process.

C. How Did We Evaluate the Record in Deciding What Action To Take on 
the Proposed Rule?

    We reviewed the record before us to determine what relevant 
information has been provided. We considered both the relevance and 
significance under SMCRA of any alleged supervisory function, right, or 
authority.\7\ For any asserted tribal supervisory function, right, or 
authority concerning allotted lands, we evaluated whether the record 
demonstrated that the Nation actually possesses the function, right, or 
authority (supervision in law),\8\ and if so, whether the record 
demonstrated that the Nation actually exercises the function, right, or 
authority over the Navajo allotted lands (supervision in fact).\9\ 
Further, we evaluated whether the record demonstrates, either 
individually or cumulatively, supervision of the allotted lands or 
activities affecting the allotted lands. Our review addressed the 
following factors, as well as any other relevant information in the 
record:
---------------------------------------------------------------------------

    \7\ The analysis of one author suggests some tribal functions or 
authorities that may constitute supervision of lands. That 
discussion notes that:
    ``[T]wo aspects of tribal sovereign authority crucial to mineral 
development [are] taxation and environmental regulation.
    ``Other police [regulatory] powers relevant to mineral 
development include the powers to regulate health and safety, 
building standards, water use, zoning, and labor.''
    Judith V. Royster, Mineral Development in Indian Country: The 
Evolution of Tribal Control Over Mineral Resources, 29 Tulsa L.J. 
541, 607 and n. 607 (1994) (Citations omitted).
    \8\ Supervision in law of allotted lands might be demonstrated 
by factors such as: specific authority or rights of the tribe to 
oversee, regulate, or superintend allotted lands that may amount to 
supervision of the lands (for example, whether the Navajo Nation has 
sovereignty over off-reservation allotments by virtue of the 
allotments' status as real property of the allottees); specific 
Navajo authority or rights on allotted lands because the lands are 
Indian country, in light of any Navajo sovereignty over its Indian 
country; tribal authority over individual allotments because of 
delegation from Congress, e.g., under 28 U.S.C. 1151. Relevant 
information could include, for example, pertinent treaties, Federal 
statutes and executive orders, Federal case law, and tribal law and 
history or tradition, as well as discussion of how and why a tribe's 
sovereignty over or authority on the lands is or is not supervision 
in law of the lands.
    \9\ Supervision in fact might be demonstrated by information 
about specific ways in which the tribe actually functions to 
oversee, regulate, or superintend allotted lands (as contrasted, for 
example, with tribal programs that are primarily social services to 
the allottees). Relevant information could address actions a tribe 
has taken or is taking to adopt, administer, or enforce programs 
affecting use of allotted lands.
---------------------------------------------------------------------------

    Established Tribal Authority Under Federal Law: Are the lands in 
question presumed or deemed as a matter of federal law or treaty to be 
subject to the tribe's sovereignty? For example, does the tribe have 
specific recognized authority over the allotted lands because of their 
status as Indian country? Or has the Federal Government delegated to 
the tribe or recognized in the tribe specific authority over the lands? 
Has the Federal Government delegated to the tribe authority over the 
lands by necessary implication? If so, does the record establish the 
nature or extent of the tribe's sovereignty or authority (as 
distinguished from Federal sovereignty) over these lands? And if so, 
have any significant and relevant aspects of tribal sovereignty or 
authority over these lands been ceded by treaty, removed by Federal 
statute, or otherwise divested or limited? Does the tribe exercise any 
such authority?
    Land Use Regulation: Does the tribe have authority over land use on 
the allotted lands? Specifically, does the tribe have zoning or land 
use planning authority? Does the tribe have authority over building on 
the lands? Does the tribe have documented authority over grazing on 
allotted lands? Has the tribe adopted a building code, a land use plan, 
or zoning for the lands, or otherwise taken action to regulate use of 
the lands? Does the tribe supervise, or has the tribe historically 
supervised grazing on the allotted lands?
    Taxation: What taxation authority or jurisdiction does the tribe 
have on the lands? For example, does the tribe have the authority to 
tax these lands or activities affecting these lands, or materials or 
profits from the lands?
    Environmental Regulation: What environmental regulatory authority 
does the tribe have over or affecting the lands? For example, what 
authority if any, does the tribe have to regulate water use, water 
quality, or health and safety on the lands? What environmental 
regulatory requirements, if any, does the tribe actually apply on these 
lands?

[[Page 20681]]

    Public Works Authority: Does the tribe have relevant public works 
authority over the lands? Has the tribe done, authorized, or funded any 
relevant public works projects on the lands?
    Other: Does the tribe have other functions, rights, or authorities 
on the allotted lands that establish ``supervision'' of the lands for 
purposes of SMCRA? For example, does the tribe have a sovereign 
interest in or congressionally delegated authority over the postmining 
uses of those lands? Or does the tribe have a sovereign interest in the 
potential effects of surface coal mining operations on the lands in 
question because of any potential effects on the health, safety, and 
welfare of tribal members, or on the economy of the tribe?

VI. What Does the Record Establish Concerning the Basis for the 
Proposed Rule?

    In addition to our review of relevant materials, discussed above, 
the record includes numerous materials submitted by commenters, 
including both documentary submittals and other comments on the 
proposed rule. Our evaluation of these materials follows.

A. What Does the Record Establish Concerning Congress' Intent Regarding 
the Indian Lands Status of Indian Country?

    The Navajo Nation asserts that SMCRA and its legislative history 
indicate that ``lands held in trust for or supervised by'' a tribe were 
intended by Congress to include Indian country. The Nation asserts that 
legislative history shows Congress' intent to prohibit state regulation 
of allotments.
    New Mexico argues that Congress knew how to provide for Indian 
lands status over ``Indian Country'' if that is what Congress intended, 
but that they chose not to. The State asserts that it would be 
inappropriate to supply by rulemaking what Congress deliberately did 
not do itself. The State also asserts that nothing in the legislative 
history or the definition of ``Indian lands'' supports a conclusion 
that Congress intended allotments to be Indian lands.
    NMA contends that Congress did not use the term ``Indian country,'' 
which had been defined in LUPA, because it did not intend the terms to 
be synonymous.
    As noted earlier in this preamble, we have found no legislative 
history of SMCRA that clearly sets out Congress' intent on this issue. 
However, we believe the relevant LUPA legislative history (discussed 
above), considered with the analysis in Venetie of Indian country law 
under 18 U.S.C. 1151 (discussed above), suggest that allotted lands' 
status as Indian country may mean that a tribe has interests in those 
lands relevant to a case-by-case determination on tribal supervision of 
lands (for example, see the discussion of tribal authority to tax 
Indian country lands in Pittsburg & Midway v. Watchman, 52 F.3d 1531 
(10th Cir, 1995) (``Watchman''), summarized infra).\10\ As discussed 
above, we have found widespread variability among legal commentators 
and court decisions as to what interests and authority tribes may have 
or typically have in Indian country or on allotments. Therefore, a 
determination of tribal interests and authority necessarily must be 
made on a case-by-case basis looking at all identified relevant 
factors.
---------------------------------------------------------------------------

    \10\ OSM recognizes that some authors make broad and general 
assertions. For example:
    ``In Indian country, Natives enjoy inherent sovereignty, i.e., 
the right of self-government and self-determination. Specifically, 
in Indian country, a tribal government has the following powers: to 
enact and impose taxes; to adopt and enforce its own internal tribal 
laws; * * * to issue marriage licenses; to buy and sell real 
property; to regulate land use; [and] to provide essential and non-
essential governmental services. * * * [Stephen C. Pevar, The Rights 
of Indians and Tribes 16 (1992); Felix Cohen, Handbook of Federal 
Indian Law 246-57 (Rennard Strickland & Charles F. Wilkinson eds., 
1982)]. Also in Indian country, * * * tribal governments enjoy the 
same sovereign immunity possessed by Federal and state governments. 
[See Pevar, supra, at 309 (citing Oklahoma Tax Comm'n v. Citizen 
Band Potawatomi Indian Tribe, 498 U.S. 505, 508 (1991); Santa Clara 
Pueblo v. Martinez, 436 U.S. 49, 58 (1978))]. They can be sued only 
if they consent or if they engage in acts beyond the scope of their 
authority. [See id.]''
    Marilyn J. Ward Ford, Indian Country and Inherent Tribal 
Authority: Will They Survive ANCSA? 14 Alaska L. Rev. 443 (1997).
---------------------------------------------------------------------------

    We are not persuaded by the arguments of New Mexico and NMA 
concerning the relevance of the legislative history of LUPA in 
interpreting SMCRA's Indian lands provisions. As discussed in Valencia, 
and in this preamble, SMCRA, the legislative history of SMCRA, and LUPA 
are consistent with a determination that allotted lands may be Indian 
lands, but do not compel a conclusion as to whether any specific 
allotted lands are in fact supervised by a tribe and therefore are 
Indian lands. Similarly, in light of our discussion of the LUPA 
legislative history, we do not find helpful the contention that 
Congress did not intend ``Indian country'' and ``Indian lands'' to be 
synonymous. Neither the proposed rule nor our decision not to adopt the 
proposed rule relies on a conclusion that the terms are synonymous.

B. What Is the Legal Authority for the Proposed Rule?

1. What Is the Statutory Authority for the Proposed Rule?
    P&M asserts that we do not have the statutory authority to adopt 
the proposed rule because the SMCRA definition of Indian lands does not 
include Indian allotment lands and urges that the proposed rule should 
be withdrawn on that ground.
    We are not persuaded by this comment. We have the authority to 
interpret and apply by rule the applicable provisions of SMCRA 
concerning this issue. This authority is derived from a variety of 
SMCRA provisions, including sections 102(b) and (m), 201(c)(1), (2), 
and (13), 701(11), and 710(h).
2. What Are the Effects of the Judicial and Administrative Cases Cited 
by Commenters Concerning the Proposed Rule?
    None of the judicial or administrative cases cited by commenters 
establishes whether or not the Navajo Nation supervises the allotted 
lands in question.
    The Navajo Nation asserts that the courts and the IBLA have 
determined that allotted lands are Indian lands for purposes of SMCRA. 
Specifically, the Nation refers to the language in Montana v. Clark 
equating ``Indian lands'' with ``all lands in which the Indians have an 
interest'' (749 F.2d 740, 752 (DC Cir. 1984), cert. denied, 474 U.S. 
919 (1985)), and the Valencia and P&M decisions, which referred to this 
Montana language. The Nation concludes that under the reasoning of 
these three decisions, all trust allotments are clearly ``Indian 
lands'' because they are lands in which Indians have an interest. The 
Nation also refers to the IBLA discussion in Valencia of the 
legislative history of LUPA, which the Nation asserts was a related 
bill. That legislative history defined the phrase ``all lands held in 
trust [for] or supervised by any Indian Tribe'' as, inter alia, ``lands 
which are Indian country for all practical purposes but which do not 
enjoy reservation status,'' and ``lands outside a reservation which 
[the Indian tribes] own or for which they possessed administrative 
responsibility.'' S. Rep. No. 197, 93d Cong., 1st Sess. 127 (1973), 
quoted in Valencia Energy Co., 109 IBLA at 50. The Nation also argues 
that numerous cases concerning ``Indian country'' establish that 
allotments are Indian country, that Indian country defines the tribe's 
territorial jurisdiction, and that Indian country, including 
allotments,

[[Page 20682]]

defines the area of exclusive tribal and Federal authority. The cited 
cases include: Oklahoma Tax Comm'n. v. Sac & Fox Nation, 508 U.S. 114 
(1993); California v. Cabazon Band of Mission Indians, 480 U.S. 202, 
207 n.5 (1987); DeCoteau v. District County Court for Tenth Judicial 
Dist., 420 U.S. 425, 427 n.2 and 445-446 (1975); and McClanahan v. 
Arizona State Tax Comm'n, 411 U.S. 164, 169 and n.4 (1973).
    We do not agree that the courts have determined that allotted lands 
are Indian lands under SMCRA. Further, the record does not establish 
that LUPA was related to SMCRA. Rather, as the Valencia decision 
indicates, LUPA was considered at the same time, by the same 
congressional committee, and used the same terminology (see preceding 
discussions of LUPA legislative history). However, the definition used 
by Congress in 1973 for LUPA is consistent with our conclusion that 
allotted lands, as Indian country, may be supervised by a tribe for two 
related reasons. First, allotted lands are Indian country and under 
Venetie and Watchman the Nation has some degree of authority over 
Indian country, including allotments. Second, although it is not clear 
on the record before us what relevant authority the Nation does have on 
allotted lands, a tribe with authority over allotted lands may have 
some function, right, or authority to superintend, regulate, or oversee 
the lands. Some of the cases cited by the Nation do not concern the 
territorial jurisdiction of the Nation, but rather the jurisdiction of 
another tribe. Other cases cited by the Nation do not address the 
authority held by all tribes in Indian country, but rather the 
authority of the Federal Government in Indian country.
    The Navajo Nation asserts that the Energy Policy Act of 1992 
(EPACT) confirms Congress's understanding that allotments are ``Indian 
lands'' under SMCRA because Title XXVI of EPACT authorizes grants to 
tribes to develop, administer, and enforce ``tribal laws and 
regulations governing the development of energy resources on Indian 
reservations'' [citing 25 U.S.C. 3504(a)]. The Nation notes that, for 
purposes of this provision, the definition of ``Indian reservation'' on 
which tribes may regulate, specifically includes off-reservation, or 
``public domain,'' Indian allotments. 25 U.S.C. 3501(2). The Navajo 
Nation also asserts that EPAct and SMCRA should be read harmoniously.
    We do not agree that the Energy Policy Act confirms Congress' 
understanding that allotments are ``Indian lands'' under SMCRA. 
Although the authorizing provisions and definition cited by the Nation 
are found in legislation that also amends SMCRA, as noted above the 
provisions themselves do not concern SMCRA, but rather 25 U.S.C. 
3504.\11\ Therefore, we see no compelling argument why these provisions 
of EPACT and SMCRA should be read harmoniously, particularly since they 
were enacted 15 years apart, and to achieve different purposes. In 
fact, the very definition the Nation cites defeats the Nation's 
argument because ``reservation'' clearly does not mean the same thing 
under SMCRA that it is defined to mean under EPACT. As the Nation's 
comment recognizes, the definition of ``Indian reservation'' in EPACT 
includes off-reservation allotments. By contrast, the SMCRA definition 
of ``Indian lands'' includes lands within Federal Indian reservations 
and lands held in trust for or supervised by an Indian tribe. Thus, 
SMCRA recognizes that off-reservation Indian lands (including any 
allotments that qualify) are not deemed reservation lands for purposes 
of SMCRA.
---------------------------------------------------------------------------

    \11\ Section 3504 was added by the Energy Policy Act of 1992 to 
Title 25 U.S.C., Indians, in a new Chapter on Indian Energy 
Resources. Section 3504 authorized grants to tribes for development 
and implementation of tribal programs for development of energy 
resources, in general. Section 3504 authorized grants from 1994 to 
1997, as well as technical assistance and training from the 
Department of the Interior and the Department of Energy. Pub. L. No. 
102-486, Sec.  2604, 106 Stat. 2776, 3114 (1992).
---------------------------------------------------------------------------

    The State notes that a 1987 decision in The Pittsburg and Midway 
Coal Mining Co. v. OSM specifically quoted a Senate Report that stated 
that ``[t]he conference report limits the definition [of Indian lands] 
to lands within the external boundaries of a Federal Indian reservation 
and to all other lands, including mineral interests, held in trust by 
the Federal Government for any tribe.'' The Pittsburg and Midway Coal 
Mining Co. v. OSM, at 11, No. TU 6-2-PR, United States Dept. of the 
Interior, Office of Hearings and Appeals (1987) (``1987 Pittsburg ALJ 
decision'') [citing Senate Report No. 94-101 at 85-86 (1975)]. The 
State further notes that the ALJ in that case concluded that OSM 
arguably exceeded its statutory authority when its 1984 Indian lands 
rules purported to regulate as ``Indian lands'' those off-reservation 
lands held in trust for or supervised by individual Indians. 1987 
Pittsburg ALJ Decision at 11 [citing 49 F. R. 38463 (September 
28,1984)]. The State points out that the ALJ concluded that OSM's 
subsequent change of position on this issue had comported with the 
statutory definition of Indian lands and the legislative history of 
SMCRA. 1987 Pittsburg ALJ Decision at 12.
    This comment by the State is inapposite for several reasons and, 
therefore, we do not find it persuasive. First, this ALJ decision on 
this issue was overturned by the Interior Board of Land Appeals (IBLA) 
on appeal and remanded for a hearing and decision on the merits. The 
Pittsburg and Midway Coal Mining Co. v. OSM, and Navajo Tribe of 
Indians, 115 IBLA 148, 160 (1990). Second, the cited ALJ decision 
language addressed OSM's earlier regulatory language that would have 
treated as Indian lands all lands held in trust for or supervised by 
individual Indians. The 1999 proposed Indian lands rule, and this 
decision not to adopt the proposed rule, would not have this effect. 
Rather, the proposed rule and this decision address whether, under 
SMCRA, we deem specific categories of allotted lands to be supervised 
by a tribe. The IBLA emphasized in its 1990 decision overturning the 
ALJ's opinion that allotted lands may be regarded as ``Indian lands'' 
if they are held in trust for or supervised by an Indian tribe.
    The State asserts that the proposed rule does not accurately 
reflect the decision in Valencia. The State alleges that the proposed 
rule relies on Valencia for the proposition that ``Indian lands'' under 
SMCRA include ``Indian country.'' The State asserts that Valencia 
actually found that the definition of ``Indian country'' was not 
relevant to its inquiry in that matter, and quotes a passage from 
Valencia:

    Thus, the fact that the land may not be `Indian country' for the 
purposes of state criminal jurisdiction is simply irrelevant to the 
question of whether these lands are properly deemed `Indian lands' 
for the purposes of SMCRA.

Valencia, 109 IBLA at 67 (1989).

    We do not agree. Valencia does not conclude that the definition of 
``Indian country'' is irrelevant to whether lands that are Indian 
country are ``Indian lands'' under SMCRA. This comment by the State 
misreads the language of the proposed rulemaking, and, in quoting a 
brief portion of Valencia out of context, mischaracterizes that 
decision. Further, as discussed below, the proposed rulemaking did not 
rely on Valencia for the proposition that Indian lands under SMCRA 
include Indian country. Rather, the proposed rulemaking identified 
several possible bases for determining that allotted lands are ``Indian 
lands,'' but did not say that we relied on any of those possible bases.
    The 1999 proposed rule discussion suggested that one of the 
possible bases

[[Page 20683]]

would be a two-part determination: first, that Congress intended the 
reference to lands ``supervised by'' an Indian tribe in the SMCRA 
definition of ``Indian lands'' to include lands encompassed by the term 
``Indian country;'' and second, a determination that allotted lands are 
Indian country. The proposed rule discussion noted that OSM had taken 
the position that Congress intended the phrase ``lands * * * supervised 
by'' an Indian tribe to include lands encompassed by ``Indian country'' 
[citing Valencia, 109 IBLA 59 (1989)]. The proposed rule referred to 
our Valencia brief discussing the LUPA legislative history of the 
phrase ``supervised by an Indian tribe.'' That legislative history says 
Congress intended the phrase to cover ``lands which are Indian Country 
for all practical purposes but which do not enjoy reservation status.'' 
S. Rep. 93-197, 127 (1973). In our Valencia brief we asserted that 
Congress must have intended the same terms (``supervised by'') and the 
almost identical definitions of ``Indian lands'' to have the same 
interpretation, as discussed in the LUPA legislative history. The 
proposed rule points out that the IBLA affirmed our analysis at 109 
IBLA 60; and that the IBLA's decision was upheld on appeal.
    Valencia does not support the State's comment that the ``Indian 
country'' definition is irrelevant to an Indian lands determination. 
Rather, the statement referred to by the State occurs in the IBLA's 
analysis of an altogether different issue. The IBLA was discussing the 
argument by the State and the mine operator that assertion of OSM 
jurisdiction over tribal fee lands would conflict with Congress' intent 
to avoid altering the jurisdictional status quo.\12\ The IBLA 
determined that tribal fee land must be ``Indian land'' under SMCRA and 
that the fact that tribal fee land may not be ``Indian country'' for 
purposes of state criminal jurisdiction is irrelevant to whether the 
lands are ``Indian lands'' under SMCRA. Id. Thus, in effect the IBLA 
held that if lands meet the SMCRA definition they will be deemed 
``Indian lands'' for purposes of SMCRA, even if they have been found 
not to meet the definition of ``Indian country'' for other purposes.
---------------------------------------------------------------------------

    \12\ The IBLA rejected both this argument and the underlying 
assumption that a parcel subject to a state's general regulatory or 
police powers before SMCRA's enactment, must also be subject to the 
state's regulatory authority under SMCRA. 109 IBLA 66. The IBLA 
rejected the argument because SMCRA itself is an assertion of 
Federal authority under the Commerce Clause to regulate all surface 
coal mining activities in states, and SMCRA allows state primacy 
only on non-Indian and non-Federal lands--thereby establishing the 
jurisdictional status quo for SMCRA purposes. Id. The IBLA noted 
that state inability to regulate Indian lands under SMCRA does not 
affect exercise of state jurisdiction under other authority. 109 
IBLA 67.
---------------------------------------------------------------------------

    The State also argues that the settlement agreement reached in 
Mescal v. United States of America underscored the State's conclusion 
that allotments are not supervised by a tribe [citing Mescal v. United 
States of America, No. Civ. 83-1408 (D.N.M.)]. The State asserts that 
the settlement establishes that allottees own the beneficial title to 
minerals underlying their allotments. The State asserts that Mescal 
supports its position that allotments are owned by individual Indians 
and the United States Government, not by the Tribe, and are not tribal 
land.
    We find these arguments inapposite and unpersuasive for several 
reasons. First, and most importantly, tribal title to lands is not 
required in all cases under the SMCRA definition of ``Indian lands.'' 
Rather, tribal supervision is the relevant prerequisite; and in some 
cases allottee ownership might be concomitant with tribal supervision 
of the lands. Second, the settlement agreement did not confer on 
allottees present title to the coal underlying the allotments. Rather, 
the Federal Government continued to hold title to the coal until the 
end of existing coal leases, but BLM records would give constructive 
notice of allottees' beneficial title to the minerals. The agreement 
provides for transfer of mineral title to the allottees at a later 
date, upon the expiration of existing Federal coal leases. Thus, the 
agreement did not change vested record title in the leased Mescal 
lands. Third, settlement agreements and consent decrees, by their very 
nature, have no precedential effect. Rather, they are binding between 
the parties to the agreement concerning the matters addressed in the 
agreement.\13\
---------------------------------------------------------------------------

    \13\ See, e.g., 18 Moore's Federal Practice Sec.  131.13[2], 
134.01 (3d ed. 2004); and Wright, Miller & Cooper, Federal Practice 
and Procedure: Jurisdiction Sec.  4443 (2d ed. 2002).
---------------------------------------------------------------------------

    The State also refers to another line of cases that it contends 
established the State's regulatory authority over allotments, and 
allowed the State's regulatory authority over all of South McKinley 
mine to remain in place: New Mexico v. United States, Civ. No. 84-3572 
(D.D.C. 1984) and the 1987 settlement agreement with the Navajo Nation 
in New Mexico v. Navajo Tribe of Indians, No. Civ. 87-1108. The State 
asserts that it and Pittsburg and Midway ``have, for over a decade, 
relied on that state of affairs, have stabilized regulation of South 
mine, and have adapted to the regulatory scheme in place.'' The State 
asserts that to require changes in regulation and bond release 
standards would be unfair, unwise, and contrary to law. Similarly, the 
National Mining Association (NMA) asserts that the proposed rule is 
inconsistent with the settlement agreement reached between OSM and 
NMA's predecessor organizations (the National Coal Association and the 
American Mining Congress) in companion litigation, NCA v. United States 
Dep't of the Interior, Civ. No. 84-3586 (D.D.C.).
    We do not agree. Neither our commitments in the settlement 
agreements nor our 1989 clarifying rulemaking excluded Navajo allotted 
lands from consideration as to whether the tribe supervised them, or 
from the definition of Indian lands. Thus, the settlements could not 
preserve the State's regulatory authority over allotments, if those 
allotments are found to be Indian lands, because, as discussed above, 
SMCRA does not authorize state regulatory jurisdiction over Indian 
lands. The litigation was started by the State's challenge to our 
assertion of exclusive regulatory authority over Indian lands under the 
1984 Indian lands regulations. The preamble to those regulations 
included ``inadvertent and unintentional'' language that, in relevant 
part, asserted that we would ``continue to regulate as Indian lands 
allotted lands, and all lands where either the surface or minerals are 
held in trust for or supervised by an Indian tribe or individual 
Indians.'' 49 FR 38463 (1984) (emphasis added). The Navajo Nation 
intervened as of right in that litigation and filed a counterclaim 
requesting a declaratory judgment that certain lands in New Mexico are 
``Indian lands.'' Subsequently the National Coal Association and the 
American Mining Congress also intervened. The parties other than the 
Nation reached settlement. The State agreed that it would not contest 
the position of the Secretary of the Interior ``that he is the 
exclusive regulatory authority with respect to surface coal mining 
operations on Indian lands within the State.'' We agreed to issue a 
statement concerning the preamble to the final Indian lands rule 
clarifying that the ``Secretary does not consider individual Indian 
allotted lands outside the exterior boundaries of the Indian 
reservation to be included in the definition of `Indian lands.' '' The 
trial court ordered the plaintiffs' actions dismissed; but the 
counterclaim of the Tribe was unaffected. New Mexico v. United States 
Dep't of the Interior, No. 84-3572 (D.D.C. August 6, 1985), aff'd. New 
Mexico ex rel. Energy and Minerals

[[Page 20684]]

Dep't v. United States Dep't of the Interior, 820 F.2d 441 (DC Cir. 
1987). In 1988, the Department published a proposed rule correcting its 
statement in the 1984 Indian lands rule preamble. In 1989, the 
Department published a final rule stating that, ``for purposes of 
surface coal mining regulatory jurisdiction, off-reservation allotted 
lands are include [sic] in the SMCRA definition of Indian lands only if 
an interest in the surface or mineral estate is held in trust for or 
supervised by an Indian tribe.'' 54 FR 22184 (May 22, 1989).
    As the IBLA has pointed out, all that the settlement [and the 
Department's 1989 final rule clarifying its policy] on the Indian lands 
status of allotted lands decided was that lands cannot be considered 
Indian lands simply because they are allotted to individual Indians, as 
had been asserted in the 1984 Indian lands preamble. Pittsburg & Midway 
Coal Mining Co. v. OSM, 115 IBLA 148, 161 (1990), aff'd Pittsburg & 
Midway Coal Mining Co. v. Babbitt, Civ. 90-730 (D.N.M. 1994).
    Likewise, the settlement agreement between the Navajo Nation and 
the State (which could not bind OSM in any case) did not purport to 
address the Indian lands status of off-reservation allotted lands. The 
State filed a motion to dismiss the Tribe's counterclaim on the 1984 
rule for lack of jurisdiction, arguing that, under SMCRA section 520, 
the claim must be brought only in the judicial district in which ``the 
surface coal mining operation complained of is located.'' In November, 
1985, the district court dismissed the Tribe's counterclaim. On appeal, 
the DC circuit vacated the district court's order denying the Tribe's 
counterclaim and instructed the district court to transfer the 
counterclaim to the United States District Court for the District of 
New Mexico. New Mexico ex rel. Energy and Minerals Dep't v. United 
States Dep't of the Interior, 820 F.2d 441 (D.C. Cir. 1987). The 
transferred litigation was settled and approved by consent decree. New 
Mexico ex rel. Energy, Minerals and Natural Resources Dep't v. Navajo 
Tribe, No. Civ. 87-1108 (D.N.M. 1992). The settlement agreed that 
specified reservation and tribal trust lands are ``Indian lands,'' and 
that other lands may constitute ``Indian lands.'' The Tribe and the 
State did not waive their respective positions as to the ``Indian 
lands'' status under SMCRA of any lands not listed in the settlement. 
In summary, neither settlement agreement established State regulatory 
authority under SMCRA over allotments, and neither agreement could 
preserve State regulatory authority over allotments found to be Indian 
lands; and neither the State nor Pittsburg & Midway could reasonably 
rely on the settlements to preclude our proper evaluation of the Indian 
lands status of allotted lands.

C. What Does the Record Establish as to Supervision by a Tribe of 
Individual Indian Trust Allotments in Approved Tribal Land 
Consolidation Areas?

    Neither the comments, nor the other documentation in the record, 
separately or cumulatively, clearly confirms whether any Nation 
programs or authorities amount to supervision of specific allotted 
lands or of all allotted lands in the consolidation area. As discussed 
below, we decline to take administrative notice of materials not 
submitted. In any case-by-case determination, commenters may provide 
information as to whether any programs of the Navajo Nation constitute 
supervision of the allotted lands.
    The Navajo Nation asserts that the Nation does in fact supervise 
allotted lands within the Navajo consolidation area. The Nation asserts 
that Navajo supervision over Navajo trust allotments is conclusively 
presumed, and clear. However, the Nation cites to no authority for this 
specific presumption. The Nation lists certain Navajo Nation ordinances 
and other provisions that it maintains the Nation applies and 
implements on allotted lands. For example, the Nation asserts that, 
pursuant to the Navajo Nation Code (``NNC''), the Nation applies to 
allotments its laws regarding the following: Agriculture and livestock, 
protection of the environment, regulation of commerce and trade, 
community development, courts and procedures, domestic relations, 
education, elections, fiscal matters, health and welfare, motor vehicle 
code, labor, land, law and order, mines and minerals, parks and 
monuments, professions and occupations, public utilities and 
communications, water, conservation, wildlife, and taxation. The Navajo 
Nation requests that we take administrative notice of the Navajo Nation 
Code and its laws.
    The Nation asserts that, in Pittsburg & Midway Coal Mining Co. v. 
Saunders, No. Civ. 86-1442 M (D.N.M. 1988), rev'd on other grounds, 909 
F.2d 1387 (11th Cir.), cert. denied, 498 U.S. 1012 (1990), decision 
after remand, 52 F.3d 1531 (10th Cir 1995), the district court examined 
a 1.9 million acre area that includes all of the P&M South McKinley 
Mine as well as several thousand Navajo trust allotments and found that 
the Nation provides to Navajos in that area a variety of services, 
including community services, health, education, and water resources; 
and that the Nation provides law enforcement and hears the vast 
majority of civil and criminal disputes in the Tribal Court. The Nation 
references the Nation's criminal jurisdiction over allotted lands, 
through the Navajo Tribal Court of Indian Offences; and provides copies 
of affidavits submitted in Saunders, concerning Navajo governmental 
authority and activity on allotted lands in such matters as 
demographics, land consolidation, education services, social services, 
health services, police services, cultural resources protection and 
ethnography, and (for the McKinley Mine permit area) land status and 
social services. The Nation also submitted a copy of a 1984 memorandum 
from a Department of the Interior Administrative Law Judge (ALJ) in a 
probate proceeding involving certain Navajo allotments. The memorandum 
discusses the applicability of the escheat provision of the Indian Land 
Consolidation Act (the Act was subsequently held unconstitutional). 
That memorandum found that the Tribe ``exercises civil governmental 
powers over the [allotted] lands'' [in the Eastern Navajo Agency] 
involved in the proceeding.
    We conclude that neither the Nation's comments, nor the affidavits, 
nor the 1984 ALJ memorandum, separately or cumulatively, clearly 
confirms any Nation programs or authorities as demonstrating 
supervision of specific allotted lands or of all allotted lands in the 
consolidation area. And, for the reasons outlined below, we decline to 
take administrative notice of the other materials referenced by the 
Navajo Nation.\14\ In the cited Pittsburg & Midway decision, the issue 
before the court was whether the P&M South McKinley mine is on the 
Navajo Reservation or in Indian country, so that the court was required 
to abstain from exercising jurisdiction over P&M's challenge to the 
Navajo Nation's tax on P&M's coal mining activities. Thus, only the 
status of the McKinley mine lands was at issue. The decision stated 
that the Tribe provided services in the area to allottees, including 
community development, child development, social services, health, 
education, youth

[[Page 20685]]

development, and water resources, and law enforcement. The decision 
discusses the role of the Nation in Navajos' lives in the area. 
However, the decision does not discuss how or why any tribal authority, 
program, or service concerns allotted lands in particular, or amounts 
to supervision of those allotted lands. Further, the decision does not 
discuss any programs or services in such detail as to support a 
conclusion as to whether they amount to supervision of the allotted 
lands.
---------------------------------------------------------------------------

    \14\ As discussed below, we anticipate that, in any case-by-case 
determination, the Nation may provide information about any programs 
that constitute supervision in fact or in law of the allotted lands; 
i.e., overseeing, regulating, or superintending the allotted lands 
or activities affecting the lands (as contrasted, for example, to 
programs that constitute general social services to allottees). In 
such a proceeding, the Nation may also request administrative notice 
of relevant materials, as appropriate.
---------------------------------------------------------------------------

    The affidavits submitted by the Nation concern primarily the 
provision of various types of social services, and tribal acquisition 
of title, as well as the importance of off-reservation cultural 
resources to the Nation. The 1986 Elwood affidavit asserts that, at the 
time of the affidavit, the Nation regulated grazing on lands in the 
1908 extension of the Navajo Nation in New Mexico, including BLM and 
BIA lands, tribal trust lands, tribal fee lands, and allotted lands, 
pursuant to a cooperative agreement. We believe the affidavit refers to 
a February 8, 1965 memorandum of understanding (MOU) among the Navajo 
Nation, BIA, and BLM concerning grazing administration of the Eastern 
Navajo Agency Administration Area. That MOU subsequently has been 
extended by amendment, most recently in January, 2003. The affidavit 
does not specifically assert that the Nation has independent authority 
to regulate grazing on allotted lands, outside of any authority 
delegated by BIA or BLM under the cooperative agreement. The Elwood 
affidavit does assert that the predominant use of lands within Navajo 
Indian country is for grazing by Navajo livestock. We have reviewed the 
January, 2003 extension of the February 8, 1965 MOU. The MOU specifies 
that there are three groups of Indian grazing communities, designated 
by District, in the Eastern Navajo Agency. However, Section III.E. of 
the January, 2003 extension specifically provides that, ``Individual 
Indian trust patent allotments and Navajo ranches shall not come under 
the administrative jurisdiction of the cooperative agreement as 
approved.'' Thus, the memorandum of understanding does not apply to 
Indian allotted lands. However, the holders of an allotment may 
voluntarily authorize regulation of grazing by BIA. Within the Eastern 
Navajo Agency, there are roughly 4,500 allotments. These allotments 
comprise the majority of the Navajo allotments within the approved 
tribal land consolidation area. Of those allotments, the necessary 
authorization for regulation by BIA has been given for roughly 1000 
allotments. For those allotments for which BIA is authorized to 
regulate grazing, BIA issues grazing permits. However, we have found no 
information in the administrative record confirming that the Navajo 
Nation regulates grazing on allotted lands.
    The 1984 ALJ memorandum discusses whether, for purposes of the 
applicable statutory criterion, those trust or restricted lands at 
issue were subjected to the Navajo Nation's jurisdiction. It states 
that ``the Tribe asserts general subject matter jurisdiction'' in the 
Eastern Navajo Agency, but specifically confirms only that ``the Tribe, 
BIA, and IHS [Indian Health Service] provide law enforcement, health, 
education, and social services'' in the Eastern Navajo Agency. Thus, 
the categories of programs confirmed are apparently services to 
individual Navajo; and the memorandum does not differentiate between 
the roles of the Nation and those of BIA and IHS.
    New Mexico's comments concerning the Nation's assertions about 
supervision of grazing, state status under SDWA, and power to tax, are 
discussed below. New Mexico asserts that the other functions and 
authorities which the Nation maintains it has on allotted lands concern 
very limited and general supervision. The State did not list those 
functions and authorities. The State asserts that those references are 
unpersuasive where Congress has not specifically applied SMCRA to 
mining on allotments.
    As discussed above, we conclude that the record before us is not 
adequate to support a conclusion as to whether the Nation's functions 
and authorities constitute supervision of the relevant allotted lands. 
Further, we conclude that this issue may be properly addressed in case-
by-case determinations. Any such determination can address whether the 
Nation supervises particular allotted lands in view of any specific 
relevant Tribal programs or authorities.
    Both New Mexico and NMA comment in effect that the Nation does not 
supervise allotted lands if the Nation's alleged supervisory functions 
or roles do not pertain to SMCRA or surface coal mining operations. New 
Mexico asserts that references in the proposed rule to incidental 
supervision on topics that have nothing to do with mining do not 
establish supervision over mining. NMA maintains that the authority to 
tax bears little relationship to supervision of lands within the 
context of SMCRA.
    We do not agree. We believe these comments mistake the issue. The 
definition of ``Indian lands'' does not require that a tribe's 
supervision must directly pertain specifically to SMCRA program 
implementation or to surface coal mining operations. Rather, the 
definition simply requires that a tribe supervise the lands, as 
discussed above. And, as discussed above and in Valencia, supervision 
may exist as a matter of fact or as a matter of law; and jurisdiction 
or control over mining is not required. Thus Valencia found that, 
because the Nation owned the surface in fee, the Nation supervised the 
lands at issue in that case as a matter of law, even though the Nation 
had leased the coal rights. 109 IBLA 66. Further, Valencia emphasizes 
the Tribe's continuing interest in the postmining condition and use of 
lands as relevant to evaluation of tribal supervision under SMCRA. Id. 
We do not agree that authority to tax lands or what is done on or 
produced from lands necessarily bears little relationship to 
supervision of lands. Rather, taxation of land or activities on land, 
or of materials harvested from land, may be an aspect of supervision of 
the lands. For example, such taxation may be authorized because of a 
government's authority over the lands; and may be a means of regulating 
or controlling what is done on the lands, or a source of funding for 
such regulation.
    Regarding specific categories of alleged Tribal supervision, we 
received the following comments:
    The Navajo Nation asserts that it supervises grazing on allotted 
lands outside the reservation. New Mexico asserts that the reference to 
grazing is not compelling because the allotments are not being grazed, 
but rather are being mined. NMA asserts that the Nation is not 
supervising grazing on allotted lands outside the reservation.
    The record does not demonstrate whether any allotted lands outside 
the reservation are grazing lands. Further, the record does not 
demonstrate whether or when those lands have been grazed. Likewise, the 
record is unclear as to whether the Navajo Nation has authority to 
supervise grazing on off-reservation allotted lands, or does supervise 
any grazing on such lands. And finally, the record does not 
conclusively demonstrate whether the Nation has an interest in or 
authority over the pre-mining and post-mining use of the allotted 
lands, and thus has authority to supervise such grazing as a matter of 
law, whether or not it supervises grazing as a matter of fact. A case-
by-case determination may address all of these questions.
    The Navajo Nation asserts that they have ``state'' status for 
purposes of implementing the Safe Drinking Water

[[Page 20686]]

Act (SDWA) on off-reservation allotted lands. However, they cite no 
authority for this proposition. New Mexico asserts that, for off-
reservation lands, the Navajo Nation is not treated as a state under 
the SDWA, having withdrawn its request for treatment as a state outside 
its reservation. In support of this contention, the State cites a 
letter dated August 9, 1991 from H. Seraydarian, USEPA Region IX, to 
New Mexico Governor King. However, our records indicate the State did 
not attach a copy of that letter.
    We find that the record contains no dispositive documentation or 
authority as to whether the Navajo Nation has ``state'' status for 
purposes of implementing the SDWA on allotted lands. In any case-by-
case determination, interested persons may provide documentation to 
support any relevant assertions on this topic.
    NMA asserts that the Navajo Nation's authority to regulate under 
the SDWA could not have been contemplated by Congress during its 
consideration of SMCRA because the Navajo Nation's treatment as a state 
did not occur until after 1986. We find this assertion unpersuasive. 
SMCRA does not require that only supervision of lands under statutes 
that existed as of the date of enactment of SMCRA may be considered; 
and nothing in SMCRA or its legislative history supports such a 
conclusion. If Congress had intended such a result, it could have 
inserted specific language to that effect in SMCRA.
    Citing 56 FR 64876 (December 12, 1991), NMA asserts that the Navajo 
Nation does not have ``state'' status under the Clean Water Act on off-
reservation allotted lands; only on reservation lands. NMA also asserts 
that, to make a fair determination of regulatory authority on off-
reservation allotted lands, we must look at all types of regulatory 
authority over the lands, and consider the entities that exercise the 
authority, rather than the few unrepresentative examples of authority 
given in the proposed rule preamble. For the following reasons, we find 
these comments not helpful. The referenced 1991 USEPA rulemaking 
concerns interpretation of a particular Federal statute not at issue in 
this rulemaking. We have found no relevance of the 1991 USEPA 
rulemaking to this rulemaking, and no relevance to this rulemaking has 
been asserted by commenters. A reference to an unrelated statute under 
which a tribe does not supervise lands is not germane. Further, we do 
not agree that we must inventory all possible authorities under which 
any entity might possibly regulate or otherwise supervise allotted 
lands, in order to make a determination as to whether a tribe 
supervises those lands. It is doubtful whether such an inventory is 
possible. But in any case, nothing in SMCRA compels or authorizes a 
comprehensive determination of the nature, extent, or focus of all such 
authority over allotted lands. And even if such an inventory were 
feasible, it would serve no purpose: as noted above, SMCRA does not 
require that a tribe exercise more authority or supervision of lands 
than does a state or the Federal Government; nor does SMCRA require 
exclusive tribal supervision. SMCRA requires only that a tribe 
supervise the lands.
    Citing Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 
(10th Cir. 1995) (``Watchman''),\15\ the Navajo Nation asserts that the 
Tenth Circuit has confirmed the Nation's authority to tax mining on 
trust allotments. The Nation characterizes this authority as the 
potentially most intrusive type of regulatory jurisdiction--``the power 
to tax involves the power to destroy.'' New Mexico asserts that the 
Navajo Nation does not tax allotted lands.
---------------------------------------------------------------------------

    \15\ Watchman was a supplemental opinion related to Pittsburg & 
Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387 (10th Cir. 1990) 
(see note 3, supra.), cert. denied, Navajo Tax Com. v. Pittsburg & 
Midway Coal Mining Co., 498 U.S. 1012 (1990).
---------------------------------------------------------------------------

    We conclude that Watchman does not unequivocally establish whether 
the Nation has the authority to impose a business tax on coal mining of 
all relevant allotted lands. However, because this decision provides 
potentially relevant or instructive discussion of a number of issues, 
we have evaluated it in some detail. In Watchman, Pittsburg & Midway 
Mining Co. (``P&M'') sought an injunction and declaratory judgment that 
the Navajo Nation lacked jurisdiction to impose a tax on P&M's mining 
activities on the off-reservation portion of McKinley mine, the ``South 
McKinley Mine.'' The Navajo Nation asserted that the Federal court 
should abstain based on the tribal abstention doctrine, and allow the 
Navajo tribal court to hear the issue first. Among other arguments, the 
Nation argued that the South McKinley mine area is Indian country 
within the meaning of 18 U.S.C. 1151. In relevant part, that provision 
reads as follows:
    18 U.S.C. 1151. Indian country defined

    Except as otherwise provided in sections 1154 and 1156 of this 
title, the term ``Indian country'', as used in this chapter, means 
(a) all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and, including rights-of-way running through 
the reservation, (b) all dependent Indian communities within the 
borders of the United States whether within the original or 
subsequently acquired territory thereof, and whether within or 
without the limits of a state, and (c) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-
of-way running through the same.

    The district court refused to dismiss P&M's complaint for failure 
to exhaust tribal remedies, holding that the area was not Indian 
country. The appellate court reversed that holding, and remanded for 
further findings by the district court, concerning whether the entire 
South McKinley Mine permit area is a dependent Indian community (and 
therefore, Indian country). The appellate court noted that P&M 
challenged the Navajo Nation's taxing authority, which was a basic 
attribute of its sovereignty. 52 F.3d 1531, 1538. The appellate court 
concluded that:

    The power to tax is an essential attribute of Indian sovereignty 
because it is a necessary instrument of self-government and 
territorial management. * * * It derives from the Tribe's general 
authority, as sovereign, to control economic activity within its 
jurisdiction, and to defray the cost of providing governmental 
services by requiring contributions from persons or enterprises 
engaged in economic activities within that jurisdiction.* * * [T]he 
power to tax is a sufficiently essential aspect of sovereignty to 
require P&M to initiate its jurisdictional challenge in Navajo 
tribal court.
* * * * *
    P&M's lawsuit presents a direct challenge to the Navajo Nation's 
jurisdiction and involves the interpretation of Navajo law.* * * A 
myriad of legal and factual sources must be consulted to resolve the 
complicated and intertwined issues implicated in cases like this 
one.
    The existence and extent of a tribal court's jurisdiction will 
require a careful examination of tribal sovereignty, the extent to 
which that sovereignty has been altered, divested, or diminished, as 
well as a detailed study of relevant statutes, Executive Branch 
policy as embodied in treaties and elsewhere, and administrative or 
judicial decisions. Resolution of these issues also requires close 
examination of the historical and present-day status of the area in 
question.

Id. (Citations omitted; emphasis added).

    The appellate decision notes P&M's arguments that the tribal 
abstention doctrine should not apply because the attempt to tax is 
patently violative of express jurisdictional prohibitions, and that the 
Tribe has no authority to regulate non-Indian activities on non-Indian 
lands. The court did not elaborate on these arguments, and disagreed:


[[Page 20687]]


    P&M is correct that the Navajo Nation as a dependent sovereign 
lacks the inherent authority of a full-fledged sovereign. * * * 
Nonetheless, * * * [t]he question is not whether the Navajo Nation 
possesses inherent authority as a sovereign to tax P&M, but whether 
18 U.S.C. 1151 is a Congressional delegation of this authority 
throughout Indian country.

52 F.3d 1531, 1540 (emphasis added). The Court continued:

    We hold Sec.  1151 represents an express Congressional 
delegation of civil authority over Indian country to the tribes. As 
a result, the Navajo Nation has authority to tax any mining 
activities taking place in Indian country without violating any 
express jurisdictional prohibitions.

52 F.3d 1531, 1541 (Citations omitted; emphasis added). The Court did 
not elaborate as to what civil authority over Indian country Congress 
had delegated to tribes. Nonetheless, the court concluded that it was 
not clear whether the area within the South McKinley Mine that was not 
allotted lands is Indian country. The court also concluded that, if the 
South McKinley non-allotted lands are not Indian country, then the 
allotted lands within the mine did not sufficiently implicate Indian 
sovereignty or other important interests of the Nation, and thus tribal 
abstention is not required. 52 F.3d 1531, 1542. In a footnote, the 
court specifically alluded to the authority of the Navajo Nation to tax 
on allotted lands. The court noted that

    Of course, if the entire mine was located on Navajo trust 
allotments, there would be no question about the doctrine's 
applicability.* * * [W]e believe the Navajo Nation has the authority 
to apply its Business Activities Tax to the source gains from the 
47% portion of the South McKinley Mine that lies within the 
individual Navajo trust allotments.

    52 F.3d 1531, 1542 n.11. However, the court also recognized that 
the Nation's authority over allotted lands was not at issue in the 
case. Therefore, this footnote appears to be dictum. In fact, it may be 
doubly dictum, because the basic holding of the case was that the issue 
of jurisdiction or authority to impose the tax should be decided in the 
first instance by the tribal court.\16\ Thus, it does not appear that 
the decision holds what the Nation asserts it holds. We expect that, in 
any case-by-case determination, interested persons may provide 
information on whether the Nation has relevant authority to tax on off-
reservation allotted lands. That information may address whether the 
circuit court's statement in Watchman that the Nation has the authority 
is binding precedent or is dictum; if it is dictum, whether it should 
be given weight as persuasive; and whether a tribal court has ruled on 
the issue. Interested persons might also address whether the Watchman 
jurisdictional challenge was pursued in Tribal court.
---------------------------------------------------------------------------

    \16\ In effect, it appears that the court may be saying if 
tribal abstention did not apply and if the issue before us were 
taxing jurisdiction over allotted lands, and if we were the trial 
court, this would be our holding on the Nation's taxing jurisdiction 
over allotted lands.
---------------------------------------------------------------------------

    None of the other cases on tribal authority to tax allotted lands 
cited by the Nation concerning the authorities of other tribes 
establishes that all tribes have taxing authority on all members' 
allotted lands. Likewise, none of those cases establishes that the 
Navajo Nation has taxation authority over all Navajo allotted lands.
    P&M maintains that whether the Navajo Nation supervises off-
reservation Indian allotments under SMCRA is a mixed question of fact 
and law. P&M asserts that dictionaries ``consistently define the word 
`supervise' to mean; `to have general oversight over, to superintend or 
to inspect' ''; and ``define superintend to mean; `to have charge and 
direction of; to direct the course of and oversee the details; to 
regulate with authority; to manage; to oversee with the power of 
direction; to take care of with authority.' '' P&M asserts that 
therefore it is clear that supervision requires the power of direction 
or authority to control or manage. P&M cites no specific authority for 
these assertions.
    New Mexico asserts that supervision does not equate to 
jurisdiction. The comment offered an example of a definition for each 
of the two terms, noting that jurisdiction ``is the authority by which 
courts and judicial officers take cognizance of and decide cases;'' and 
that supervision connotes an element of management. New Mexico also 
effectively asserts that ``Indian country'' is a jurisdictional term 
and does not equate to supervision.
    As we discuss above, we agree that supervision may be supervision 
in law or supervision in fact, or both. However, we are not persuaded 
by the comment asserting that supervision is not the same as 
jurisdiction. A review of reference works indicates that the 
distinction between ``supervision'' and ``jurisdiction'' is not always 
clear, and that they are sometimes used to mean the same thing. For 
example, Black's Law Dictionary defines the two terms as follows:

    ``[S]upervision'': The act of managing, directing or overseeing 
persons or projects. (``direct'': * * * 3. To guide (something or 
someone); to govern.)

Black's Law Dictionary (7th ed. 1999).

    ``Jurisdiction'': 1. A government's general power to exercise 
authority over all persons and things within its territory * * * 3. 
A geographic area within which political or judicial authority may 
be exercised.

Id.
    Burton's Legal Thesaurus gives as synonyms for ``supervision'':

Administration, care, charge, command, control, direction, 
government, gubernation, guidance, inspection, jurisdiction, 
management, oversight, procuratio, proctorage, regulation, steerage, 
stewardship, superintendence, surveillance.

    William C. Burton, Legal Thesaurus (1980).

    Burton gives as synonyms for ``jurisdiction'':

Authority, authority to hear and decide a case, capacity to decide 
the matter in issue, capacity to hear the controversy, command, 
control, decision-making power over the case, domain, domination, 
dominion, extent of authority, grasp, jurisdictio, legal authority, 
legal power, legal power to decide a case, legal right, power, 
province, purview, range, reach, realm, reign, sovereignty, sphere, 
superintendence, supervision, territorial range of authority, 
territory.

Id.
    Another legal reference book, Words and Phrases, includes the 
following discussions of the meaning of ``jurisdiction'':

    Jurisdiction is controlling authority; the right of making and 
enforcing laws or regulations; the capacity of determining rules of 
action or use, and exacting penalties; the function or capacity of 
judging or governing in general; the inherent power of decision or 
control. People v. Pierce, 41 N.Y.S. 858, 860, 18 Misc. 83.
* * * * *
    The word ``jurisdiction'' in its technical sense is not 
synonymous with ``authority'' although it is sometimes employed in 
that sense. In re Perez, 1 So.2d 537, 540, 197 La. 334.
* * * * *
    The term ``jurisdiction'' imports authority to expound or apply 
laws. Max Ams, Inc. v. Barker, 170 S.W.2d 45, 48, 293 Ky. 698.
* * * * *
    The term ``jurisdiction'' originally included only right to hear 
and determine concerning subject matter in particular case, but is 
now frequently used as meaning authority to do particular thing or 
exercise a power in a particular manner. Fortenbury v. Superior 
Court in and for Los Angeles County, 106 P.2d 411, 412, 16 Cal.2d 
405.
* * * * *
    The word ``jurisdiction'' is frequently used as meaning 
authority to do the particular thing done * * * Evans v. Superior 
Court in and for the City of San Francisco, 96 P.2d 107, 116.

Words and Phrases, ``Jurisdiction'' (2001).


[[Page 20688]]


    These references indicate that the two words are not necessarily 
synonymous, but that they may be used as synonyms and both words can 
mean command, control, or superintendence. ``Jurisdiction'' may be said 
to typically refer to a government's general power to exercise 
authority over persons and things within its territory. As discussed 
above, ``supervision'' may be said to typically refer to regulating, 
overseeing, or superintending persons or things.
    As discussed above, in Valencia Energy Co., the IBLA rejected an 
argument that jurisdiction was a prerequisite for supervision. The 
operator had argued the Nation lacked jurisdiction over lands outside 
the boundaries of the reservation, and thus that those lands could not 
constitute lands ``supervised by an Indian tribe'' for the purposes of 
SMCRA. Further, the operator argued that the Nation lacked supervisory 
authority over the land, arguing that the Nation had conveyed all of 
its rights to the surface in a lease for approximately 50 years. The 
IBLA concluded that OSM's analysis was sufficient to support a finding 
of supervision in fact; and also that ownership of the surface estate 
was sufficient to compel a conclusion of ``supervision'' as a matter of 
law under SMCRA (despite the lease under which the Nation had granted 
full use of the surface for mining purposes).
    However, there is nothing inherent in any of the definitions of 
``jurisdiction'' and ``supervision'' that precludes jurisdiction from 
being either an aspect of supervision or a basis for supervision. Thus, 
for example, jurisdiction may be a prerequisite for regulation, and may 
be a concomitant of sovereignty, and if a tribe has regulatory 
authority over lands or has sovereignty over lands, then it is 
certainly possible that the tribe may supervise those lands. In 
summary, we conclude that the comment attempting to distinguish between 
the terms ``supervision'' and ``jurisdiction'' is not particularly 
helpful, and our review of references and definitions indicates that 
they do not compel the conclusion advocated by the comment.
    P&M notes that the Navajo Nation is the only Indian tribe in the 
approved Navajo Land Consolidation Area, and asserts that, therefore, a 
valid rulemaking will require a specific finding by the Secretary that 
the allotment lands subject to the proposed rule are supervised by the 
Navajo Nation. However, P&M asserts that neither the Navajo Nation nor 
OSM has offered or is able to offer any facts to support this critical 
finding. P&M urges that it is clear that the Navajo Nation has no power 
of direction or authority. P&M asserts that numerous Federal courts, 
including the United States Supreme Court, have held that

``[l]ands allotted to be held in trust for the sole use and benefit 
of the allottee or his heirs are during the trust period under the 
exclusive jurisdiction and control of Congress for all governmental 
purposes relating to the guardianship and protection of the 
Indians.'' And; ``[t]rust allotments to individual Indians remain 
under exclusive jurisdiction and control of Congress during the 
trust period for all purposes relating to guardianship and 
protection of Indians.''

    P&M cites annotations to 18 U.S.C.A. Section 1151, n.14 as 
authority for these statements. P&M asserts that thus it is clear that 
``Congress, through it's agent, The [sic] Bureau of Indian Affairs, 
supervises the allotment lands within the Tribal Consolidation Area.''
    We agree that the intent of the proposed rule is to determine 
whether off-reservation Navajo allotted lands within the approved 
Navajo land consolidation area are supervised by the Navajo Nation and 
thus are Indian lands under the SMCRA definition of ``Indian lands.'' 
However, as discussed above, we conclude that the record does not 
support a determination as to supervision of those allotted lands, and 
that such a determination is appropriately made on a case-by-case 
basis. Further, the cases quoted in the annotations to 18 U.S.C.A. 
1151, n. 14, concerning the Federal Government's exclusive jurisdiction 
and control over allotted lands ``for all governmental purposes 
relating to the guardianship and protection of the Indians'' do not 
clearly preclude a tribe from regulating allotted lands and their use 
for other purposes. Indeed, the cases addressing the Indian country 
status of allotted lands specifically and consistently characterize 
allotted lands as a category of Indian country, and state that Indian 
country (not excluding allotted lands) is subject to the primary 
jurisdiction of the Federal Government and the Indians. See Venetie, 
522 U.S. 531, and the cases cited therein. We are also mindful of the 
holding in Watchman that 18 U.S.C. 1151 was an express Congressional 
delegation of civil authority over Indian country to the tribes, and 
the statement in Watchman that the Navajo Nation has authority to tax 
any mining activities taking place in Indian country without violating 
any express jurisdictional prohibitions. 52 F.3d 1541. The court noted 
that the Navajo trust allotments are Indian country by definition under 
18 U.S.C. 1151(c). 52 F.3d 1535. (The decision also specifically noted 
that this statute had been amended by Congress to conform to a Supreme 
Court decision that determined that trust allotments are subject to 
Federal jurisdiction. 52 F.3d 1541.) And, as discussed above, the 
decision referred in a footnote to the court's understanding that the 
Navajo Nation has the authority to apply its tax to the coal produced 
on the 47% of the South McKinley mine lying within the Navajo trust 
allotments. 52 F.3d 1531,1542 n.11. Thus, these decisions do not 
support the commenter's assertion that the Nation has no authority on 
allotted lands.
    P&M asserts that the Navajo Nation does not have title to the 
allotted lands or have any other legal interest in them; that there are 
no laws or regulations that grant to the Navajo Nation supervisory 
authority over allotted lands; and that the Nation cannot establish any 
significant or substantial or real control over the allotted lands 
within the tribal consolidation area. P&M also proposes that OSM should 
address the following issues when determining whether the Navajo Nation 
supervises off-reservation allotments: The existence of Nation 
contractual rights or other authority, or activities, that establish 
that the Nation has overseen or exercised authority over those lands; 
and the extent to which individual allottees consider their lands 
``supervised'' by the Nation.
    Because we have decided not to adopt the proposed rule and 
anticipate that the question of tribal supervision will be properly 
addressed in case-by-case determinations, those determinations may 
address relevant information addressing P&M's concerns. Thus, in any 
such determinations concerning Navajo Nation supervision of allotted 
lands interested persons may submit for consideration all relevant 
information concerning matters such as title to the lands; applicable 
statutes, regulations, treaties, and executive orders; and all other 
information concerning Navajo supervision. We anticipate that relevant 
information would include evidence related to whether the Nation has 
the right or authority of overseeing, or acts to oversee the lands; and 
to whether the Nation has the right or authority to regulate or 
superintend what is done affecting those lands, or does in fact 
regulate or superintend what is done affecting the lands. To the extent 
the types of information referenced by P&M are submitted and are 
relevant to these matters, they may be addressed in any further case-
by-case proceedings.

[[Page 20689]]

D. What Procedural Questions Does the Record Raise About the Proposed 
Rulemaking?

1. Is a Formal Adjudication Required on the Issue Presented in the 
Proposed Rule?
    P&M asserts that the question of tribal supervision of allotted 
lands should not be decided by an informal rulemaking process, but 
rather by formal adjudication, in order to allow interested parties the 
opportunity to fully develop evidence and fully address the facts and 
circumstances related to the Nation's contention that it supervises 
allotted lands.
    As noted above, we believe the parties to the settlement and MOU 
contemplated that the rulemaking was to address the Indian lands status 
of the off-reservation allotted lands in the Navajo land consolidation 
area. However, as discussed infra, the record is not clear as to a 
number of the relevant facts. As to the relevant factors addressed by 
the commenters, some comments allege that the Nation does have the 
relevant right or authority, or functional role, and some allege that 
they do not; but generally there is little or no evidence or other 
support in the record for either set of allegations. A more complete 
record is needed to establish whether or not the Nation supervises the 
allotted lands in question.
    Whether the Nation supervises allotted lands in the Navajo land 
consolidation area, so that those lands would be deemed Indian lands 
under SMCRA, may be properly addressed in a proceeding in which all 
interested persons may provide relevant information and address the 
significance and weight to be attached to that evidence. However, we do 
not believe that a formal quasi-judicial administrative hearing would 
be required for such a determination in all cases. Less formal 
procedures may develop an appropriate record. For example, the 
procedures for SMCRA permitting decisions may assure an adequate 
record, since those procedures ensure all interested persons ample 
opportunity to participate in the permitting process. For example, the 
Indian lands status of certain off-reservation allotted lands, which 
are within the permit area of the south McKinley mine, had been the 
subject of the P&M case. Pittsburg & Midway Coal Mining Co. v. OSM, 
Docket No. TU 6-2-R, Dismissed without prejudice, February 2, 2007 (OHA 
Departmental Hearings Div.). We believe that the record in such a case 
could be developed to fully address the Indian lands status issues.
2. Are We Taking Administrative Notice of Materials as Requested by 
Commenters?
    As discussed in more detail below, the Navajo Nation refers to 
documents that it believes are relevant to this rulemaking, and 
requests that we take administrative notice of the materials. Some of 
those documents were submitted in evidence in proceedings that occurred 
more than a decade ago. Because of the age of the materials, and 
because the Nation has indicated the materials are voluminous, we 
believe it is not in the interest of fairness to take administrative 
notice of those materials without full notice and opportunity for all 
interested persons to review, evaluate, and comment on them. We believe 
that all interested persons and the decision maker should have ample 
opportunity to address the weight and relevance to be attributed to 
these materials, particularly to the extent that they would be 
submitted to establish supervision in law or in fact.
    The Navajo Nation requests that we take administrative notice of 
the Navajo Nation Code (``NNC'') and its laws which the Nation 
maintains demonstrate the Nation's supervision of allotted lands. 
Further, the Navajo Nation asserts that it submitted extensive proof of 
its active supervision of the trust allotments, including an unrebutted 
factual showing of tribal jurisdiction over the allotments, in two 
cases: New Mexico, ex. rel. Energy and Minerals Dep't, Mining & 
Minerals Div. v. United States Dep't of the Interior, No. Civ. 84-3572 
(D.D.C. 1985), aff'd in part and rev'd in part, 820 F.2d 441 (D.C. Cir. 
1987), settlement approved after remand and transfer, No. Civ. 87-1108 
JB, 19 Indian L. Rep. 3119 (D.N.M. 1992) (``New Mexico v. DOI''); and 
Pittsburg & Midway Coal Mining Co. v. OSMRE and Navajo Tribe, IBLA No. 
87-577. The Nation asks that we take notice of and include in the 
administrative record the exhibits filed by the Navajo Nation in New 
Mexico v. DOI, and the administrative record filed and discovery 
completed in Navajo Nation v. Babbitt, No. Civ. 89-2066 (D.D.C.) 
[citing United States v. American Tel. & Tel. Co., 83 F.R.D. 323, 333-
34 (D.D.C. 1979)].
    In the interest of administrative fairness we will not take 
administrative notice of the Navajo Nation's exhibits in the referenced 
Federal court litigation, and will not take administrative notice of 
the NNC. The Navajo Nation is requesting administrative notice of these 
materials as probative of supervision-- the central issue in this 
rulemaking. In any case-by-case determination the Navajo Nation may 
offer these materials in evidence and their merits may be addressed as 
appropriate by interested persons. These materials are not otherwise 
readily available to interested persons. The exhibits of which the 
Nation requests that we take administrative notice were apparently 
filed with the respective Federal district courts between 10 and 20 
years ago. The files of such old closed Federal cases are typically 
routinely archived by the courts and may even have been routinely 
destroyed by the archives because of the age of the records. Further, 
given the age of these materials, it is unclear whether they would 
accurately reflect current law and current conditions. (And, because of 
the age of these records, even if they still exist and could be 
retrieved by the courts, it does not appear reasonable to expect 
interested persons to timely request and review them.) We located and 
reviewed a copy of the NNC, dated 1995, in the Department of the 
Interior Natural Resources Library. That copy was obtained by the 
Library in 1999. We have no information as to what, if any, changes may 
have been made to the NNC since either 1995 or 1999. Further, the 
copies of affidavits or declarations actually submitted by the Nation 
primarily concern social services to allottees, rather than supervision 
of allotted lands, and thus appear to be of limited relevance.
    Administrative notice (or ``official notice'') is an administrative 
law device that is used to enter information into the record that has 
not been proved through hearing methods.\17\ Effectively, the decision 
maker may consider some commonly understood information as if it had 
been documented, submitted in evidence, and proved (although it has not 
actually been).\18\
---------------------------------------------------------------------------

    \17\ See Charles Koch, Administrative Law & Practice Sec.  
5.55(1) at 204 (2d ed. 1997). Administrative notice is generally 
used to allow a decision maker to take notice of commonly 
acknowledged facts. In addition to commonly known facts, an 
administrative agency can take notice of technical or scientific 
facts that are within the agency's area of expertise. See McLeod v. 
Immigration & Naturalization Serv., 802 F.2d 89, 93 n.4 (3rd Cir. 
1986) [citing NLRB v. Seven-Up Bottling Co., 344 U.S. 344 (1953)].
    \18\ In hearings before the Department of the Interior Office of 
Hearings and Appeals (OHA), 43 CFR 4.24 allows administrative notice 
``of the public records of the Department of the Interior and of any 
matter of which the courts may take judicial notice.'' In hearings 
subject to the Administrative Procedure Act, 5 U.S.C. 556(e) (the 
``APA''), ``[w]hen an agency decision rests on official notice of a 
material fact not appearing in the evidence in the record, a party 
is entitled, on timely request, to an opportunity to show the 
contrary.'' This rulemaking is not directly subject to these 
procedural requirements, because it is not based on a hearing before 
an OHA board, nor does it involve a hearing subject to the cited 
provision of the APA. Nonetheless, the OHA procedures and the APA 
provisions were adopted because they ensure basic procedural 
fairness in agency decision making. Thus, these provisions provide 
useful guidance as to what may be generally regarded as procedures 
to ensure fundamental fairness in agency decision making.

---------------------------------------------------------------------------

[[Page 20690]]

    With regard to the Navajo Nation's previous exhibits, in 
determining whether administrative notice should be taken, agencies 
have distinguished between ``adjudicatory'' facts and ``legislative'' 
facts. Adjudicatory facts pertain to the immediate parties, whereas 
legislative facts are general and do not concern the immediate parties. 
See 3 Kenneth Davis, Administrative Law Treatise Sec.  10.6 at 150 
(1984). In practice, the admission of adjudicatory facts depends upon 
whether the facts are central to the controversy. If they are, they 
usually have to be proved, but if they are not, they may be officially 
noticed. See Koch, supra, at 207. Agencies more typically notice 
legislative facts if the parties are given notice of their use and are 
given an opportunity for rebuttal. See Koch, supra, at 206. The use of 
adjudicatory facts is more restricted. Under the Federal Rules of 
Evidence (which govern judicial notice but also provide useful guidance 
in this case, in light of 43 CFR 4.24, supra), adjudicatory facts that 
are ``not subject to reasonable dispute'' may be noticed, but all other 
adjudicatory facts must be proved. We believe that the Nation's 
exhibits from previous proceedings would be intended to establish 
whether the Navajo supervise the allotted lands (and as discussed 
below, in this case might be considered both adjudicatory facts and 
legislative facts). The nature of the proposed rule amply demonstrates 
that the issues of whether the Navajo Nation supervises these off-
reservation allotted lands, and, more generally, what interests and 
roles the Navajo Nation has on these lands, are subject to reasonable 
dispute. These are issues central to the proposed rule, and are 
disputed by commenters. Therefore, we conclude that it would not be 
fair or appropriate to take administrative notice as requested by the 
Nation.
    With regard to the NNC, arguably ``any information useful in 
deciding the adjudication may be noticed as long as no unfairness is 
created.'' Koch, supra, at 205. However, it is not clear whether the 
version of the code available to us at the location of the 
administrative record is current and complete. Further, the record 
before us does not clearly establish whether and in what way the code 
is implemented on allotted lands, or what the Nation's authority is to 
implement the code on off-reservation allotted lands, in light of any 
other law that may be applicable. Thus, there is an argument that, 
concerning the issues in this rulemaking, the terms and applicability 
of the NNC are both ``adjudicatory'' and ``legislative'' facts. In any 
case, we conclude that to take notice of these materials without 
further opportunity for examination and comment by all interested 
persons would be of questionable fairness and value.
    In summary, the Nation and all other interested persons may submit 
all relevant and probative materials in any case-by-case determination. 
All such materials may then be examined and addressed by all interested 
persons as to their relevance and the weight to be given them 
concerning the ``Indian lands'' status of specific Navajo off-
reservation allotted lands.

E. What Administrative, Operational, and Environmental Issues Did 
Commenters Raise Concerning the Proposed Rule?

    The proposed change in the definition of Indian lands, if adopted, 
would have shifted SMCRA regulation from the State to OSM for all 
allotted lands located within the Navajo land consolidation area in New 
Mexico. Under the proposed rule change we would have assumed SMCRA 
jurisdiction on the 48 allotments included within the mine's so-called 
south area.
    As we noted earlier, the McKinley Mine permit area straddles the 
boundary of the Navajo Reservation near the Arizona-New Mexico border. 
The portion of the permit that lies within the reservation boundaries 
and on an adjacent parcel of off-reservation Navajo fee lands is 
collectively referred to as the north area and is regulated by us. The 
remainder of the mine, the so-called south area, is composed of 
Federal, private, State, and allotted lands occurring in a complex 
checkerboard pattern and is regulated by the State of New Mexico.
    State and industry commenters were very concerned that the proposed 
change in the definition of Indian lands would greatly increase the 
area subject to dual regulation at the McKinley Mine and thus further 
complicate regulation at the mine. One commenter maintained that the 
rule change would create a potential disincentive to continued mining 
at McKinley Mine and to future mining in other checkerboard areas of 
New Mexico. The same commenter asserted that the increase in dual 
regulation would be complex, burdensome, expensive, impractical and 
time-consuming and would undermine SMCRA's intent of ensuring efficient 
regulation and reclamation of coal mining operations. The commenter 
also cited specific issues of concern stemming from differences in 
State and OSM regulations and differing interpretations of rules.
    Another commenter noted that certain difficulties associated with 
our assumption of jurisdiction in 1986 on the tribal fee lands at the 
McKinley south mine were illustrative of the types of problems that 
would arise from our adoption of the proposed rule change. The 
commenter cited numerous issues anticipated for any transfer of 
jurisdiction.
    State and industry commenters also commented extensively on the 
bureaucratic inefficiencies and the additional administrative expenses 
for regulators and mine operators that they believe would result from 
the proposed rule change due to differences in State and OSM 
regulations and differing interpretations of regulatory requirements. 
They also expressed concern about the frequency of consultation that 
would be required, and about the confusion and delays they expected as 
the operator moves from section to section. In addition, they asserted 
that the proposed change in the definition of Indian lands would have 
serious adverse economic and financial consequences at the local, 
State, and Federal levels, including increased regulatory workloads and 
costs, potential loss of future mining and mining jobs, and lost 
royalty and tax revenue from State lands.
    Although commenters' concerns about the effects of a complex 
regulatory scheme may reflect business and fiscal concerns, the complex 
land ownership patterns at the McKinley south mine, or elsewhere in the 
consolidation area in New Mexico, are not relevant to a determination 
of whether any or all of the allotted lands in the consolidation area 
are Indian lands. Further, we believe that determinations of the Indian 
lands status of consolidation area allotments are properly based solely 
upon application of the SMCRA standard. That standard requires 
consideration of relevant information concerning the nature and extent 
of the tribe's supervisory authority over the allotted lands. Any 
operational or administrative concerns about a determination could be 
addressed through coordination between OSM and the State on a site-
specific basis.

[[Page 20691]]

F. What Other Questions Does the Record Raise About the Proposed 
Rulemaking?

1. Must Any Ambiguities Be Construed in Favor of Tribal Interests?
    The Navajo Nation asserts that the Indian lands provisions of SMCRA 
are intended to benefit Indian tribes under the Federal trust 
responsibilities. The Nation asserts, in effect, that, if there is any 
ambiguity as to whether the Navajo interest in and authority over 
allotted lands amounts to supervision, applicable rules of statutory 
construction require that any ambiguities in the SMCRA Indian lands 
provisions should be construed in favor of tribal interests. The Nation 
cites Bryan v. Itasca County, 426 U.S. 373, 392-93 (1976); Montana v. 
Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985); Jicarilla Apache 
Tribe v. Andrus, 687 F.2d 1324, 1332 (10th Cir. 1982); and Star L. R. 
Co. v. Lujan, 737 F. Supp. 103, 109 (D.D.C. 1990), aff'd, 925 F.2d 490, 
18 Indian L. Rep. 2027 (DC Cir. 1991). The Nation asserts that these 
rules of statutory construction have a special corollary with respect 
to whether trust allotments are `Indian lands' under exclusive tribal 
and Federal authority; and that any ambiguities in Federal legislation 
``should be resolved in favor of limiting state jurisdiction.'' The 
Nation quotes State v. Ortiz, 105 N.M. 308, 311, 731 P.2d 1352, 1355 
(Ct. App. 1986):

    The Supreme Court has implicitly recognized that stricter 
standards apply to federal agencies when administering Indian 
programs. * * * When the Secretary is acting in his fiduciary role 
rather than solely as a regulator and is faced with a decision of 
which there is more than one ``reasonable'' choice as that term is 
used in administrative law, he must choose the alternative that is 
in the best interest of the Indian Tribe.

    The Nation cites: Jicarilla Apache Tribe v. Supron Energy Corp., 
728 F.2d 1555, 1567 (10th Cir. 1984), dissenting opinion adopted as 
modified on reh'g, 782 F.2d 855 (10th Cir. 1986) (en banc), modified on 
other grounds, 793 F.2d 1171 (10th Cir. 1986), cert. denied 479 U.S. 
970 (1986).
    Thus, the Nation argues that ambiguities in the definition of 
``Indian lands'' must be resolved in favor of the Navajo Nation because 
if the allotments are not Indian lands they may be regulated by the 
states, ``contrary to the cornerstone of the special tribal/federal 
relationship.'' The Nation cites New Mexico ex rel Energy and Minerals 
Dep't, Mining & Minerals Div. v. United States Dep't of Interior, 820 
F.2d 441, 445 (DC Cir. 1987), settlement approved after remand and 
transfer, No. Civ. 87-1108 JB, 19 Indian L. Rep. 3119 (D.N.M. 1992); 
and Washington Dep't of Ecology v. United States EPA, 752 F.2d 1465, 
1470 (9th Cir. 1985). The Navajo Nation notes that the latter case 
stated that the trust responsibility ``arose largely from the federal 
role as a guarantor of Indian rights against state encroachment.''
    We believe that, under SMCRA, we act solely as a regulator, and 
that the canon of construction referenced by the Nation does not apply 
to our interpretation of SMCRA's Indian lands provisions and 
implementing rules for purposes of implementing our regulatory 
responsibilities. Section 102(a) of the Act states that ``it is the 
purpose of this Act to establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' The Federal program for Indian lands is a 
component of this nationwide regulatory program, intended to ensure 
``that all mining operations on Indian lands are conducted in 
accordance with permanent program standards until tribes are given the 
authority to seek and obtain primacy.'' 49 FR 38464 (September 28, 
1984). The preamble to the final rulemaking adopting the Indian lands 
permanent program requirements discusses in some detail how 
responsibilities for Indian trust asset management and for tribal 
consultation remain with MMS, BLM, and BIA under their separate 
statutory authorities; and emphasizes that OSM is responsible for 
establishing a nationwide regulatory program for surface coal mining 
operations, of which the Indian lands program is one part, until tribes 
are authorized to assume primacy. 49 FR 38467-38469. The preamble makes 
clear that, when implementing the SMCRA Indian lands program, we are 
solely implementing the nationwide regulatory program. The authority 
and fiduciary responsibility to administer Indian trust assets were not 
affected by SMCRA or the Indian lands rule; they remain with MMS, BLM, 
and BIA, under their respective authorities. As a result, we do not 
understand the canon of construction articulated in Ortiz to apply by 
its terms to our implementation of SMCRA's Indian lands regulatory 
provisions.
    However, we would reach the same conclusion on the proposed rule 
even if the canon set out in Ortiz did apply to our action on this 
matter. We are mindful that the nature and extent of the trust 
responsibilities of Federal agencies have been described in many 
different ways in court decisions. Some cases arguably take a very 
expansive view of Federal agency trust responsibilities. See, e.g., HRI 
v. United States EPA and Navajo Nation, 198 F. 3d 1224, 1245-1247. 
Nonetheless, regardless of the applicability of any special canons of 
statutory construction, the record before us in this rulemaking is 
inadequate to support a determination as to whether the Navajo Nation 
supervises the off-reservation allotted lands within the approved 
Navajo land consolidation area.
2. Can a Tribe Supervise Lands Over Which a State Has Authority?
    The comments of the Navajo Nation include extensive arguments 
concerning their position that states do not have general regulatory 
authority or governmental authority over Indian country, including 
allotted lands.
    We conclude that these comments are not germane to the proposed 
rule because they do not address whether the Nation supervises allotted 
lands, in law or in fact. Rather, these comments relate to states' 
authority in Indian country and to Congress' views on states' ability 
or authority to regulate in Indian country. The proposed rule did not 
purport to analyze or define the nature or extent of the State's 
general authority or jurisdiction over off-reservation allotted lands. 
We have no authority to make such a determination. The SMCRA definition 
of ``Indian lands'' does not require that off-reservation lands will be 
considered Indian lands only if they are subject to no state regulation 
or authority of any kind. The proposed rule concerns only whether 
tribes supervise certain allotted lands, as a matter of law or as a 
matter of fact, and thus whether such lands are Indian lands for 
purposes of SMCRA. Thus, if a state has some authority on or interest 
in the lands this does not preclude properly considering the lands to 
be ``Indian lands'' for purposes of SMCRA. Because these comments about 
State authority or jurisdiction do not address the Nation's supervision 
of allotted lands the comments do not address the merits of the 
proposed rule and are not helpful.
    The comments assume that state regulation of allotted lands under 
SMCRA is a dilution of the Federal trust responsibility because 
allowing state regulation delegates a trust responsibility to the 
state. We do not agree. If the Nation does not supervise the off-
reservation allotted lands, then those lands are not Indian lands under 
SMCRA. Thus, if the allotted lands were found not to be supervised by 
the Nation, allowing state regulation would not delegate a fiduciary 
trust management responsibility to the state. However, if the Nation is 
found to

[[Page 20692]]

supervise the lands in question, those lands are Indian lands and are 
subject to the Federal Indian lands regulatory program.
    The Navajo Nation maintains that 30 U.S.C. 1300(h) confirms that 
all Indian trust allotments must be considered ``Indian lands'' because 
it states ``nothing in this Act shall change the existing 
jurisdictional status of Indian lands.'' The Nation refers to the final 
conference committee report on SMCRA, which stated that this proviso 
was intended to preserve the existing jurisdictional status of off-
reservation trust lands. H.R. Rep. No. 493, 95th Cong., 1st Sess. 114 
(1977). The Navajo Nation asserts that, with respect to the off-
reservation trust allotments at issue, it is clear that states could 
exercise no legitimate regulatory function in 1977 when SMCRA was 
enacted. The Nation asserts that in 1977 reclamation of surface coal 
mines on all Indian lands was covered by a comprehensive and exclusive 
(of states) Federal regulatory regime. The Nation references 25 CFR 
Part 177, Subpart B (1977), and General Accounting Office 
Administration of Regulations for Surface Exploration, Mining, and 
Reclamation of Public and Indian Lands 5-6 (1972). The Nation asserts 
that in 1977 state laws regulating or controlling the use or 
development of any trust land, including all off-reservation trust 
allotments, could not apply on allotments:

    Without specific authorization of the Secretary of the Interior, 
none of the laws, * * * or other regulations of any State or 
political subdivision thereof limiting, zoning, or otherwise 
governing, regulating, or controlling the use or development of any 
real * * * property * * * shall be applicable to any such property 
leased from or held or used under agreement with and belonging to 
any Indian * * * that is held in trust by the United States. * * *

25 CFR 1.4(a) (1977).

    For several reasons we do not find these comments helpful. First, 
whether or not a state regulates allotted lands under other law the 
SMCRA definition of ``Indian lands'' still applies. See Valencia, 
which, as discussed above, concluded that SMCRA establishes the 
jurisdictional status quo for SMCRA purposes, although it does not 
affect the jurisdictional status quo for other purposes. 109 IBLA 66. 
Second, this comment is not germane to the proposed rule because it 
does not address the question of whether the Nation supervises off-
reservation allotted lands, in law or in fact. Like the preceding 
comments, this comment asserts that the states had no legitimate 
jurisdiction or authority on allotted lands in 1977 and thus can have 
none now under SMCRA. Such assertions do not address whether a tribe 
supervises allotted lands for SMCRA purposes.
    The Navajo Nation also asserts that the Department of the Interior 
had recognized by 1977 that Indian tribes had retained general 
regulatory authority over the trust allotments of their members. The 
Nation cites a memorandum opinion of the Solicitor, Department of the 
Interior: Application of Local Building Codes to Indian Trust Property, 
II Op. Sol. 2052 (1972) [available at 4 Indian L. Rep. 0-7 (1977)].
    As discussed above, case law indicates that determinations of 
tribal authority or rights must be made on a case-by-case basis. The 
cited Solicitor's Opinion addresses, inter alia, the authority of a 
particular tribe in Washington State to regulate the use of tribal 
trust and individual allotted lands in that State. The opinion 
concludes that in that instance the tribe has the inherent authority to 
regulate the use of both tribal and individually held trust land. The 
opinion is not germane to this rulemaking because it does not concern 
supervision by the Nation of off-reservation allotted lands and the 
authority of each tribe must be examined based on the facts and law 
concerning that tribe.
3. Is the Proposed Rule Consistent With Past OSM Actions?
    The Navajo Nation maintains that in the 1989 rule OSM justified its 
clarification of the status of these allotments in ``wholly 
contradictory ways.'' Specifically, the Nation noted that we stated on 
the one hand that:

It is more appropriate that this jurisdictional issue [of off-
reservation allotments] be addressed by rulemaking * * * rather than 
by quasi-judicial proceedings in which only parties and intervenors 
have standing.

1989 AR 3-4. On the other, the Nation asserts that we ``confessed'' 
that:

    A dispositive policy concerning the concept of tribal 
supervision of individual trust allotments * * * would have to 
encompass a highly complex set of potential issues and fact 
patterns, and is beyond the scope and purpose of this rulemaking. As 
stated earlier in this preamble, OSMRE will make such determinations 
on a case-by-case basis if and when the need arises.

1989 AR 5.

    We agree that the quoted language could have been more precisely 
phrased; however, these materials are quoted out of context. We believe 
that careful examination of the 1989 rule preamble language indicates 
that we intended to say that whether off-reservation allotted lands in 
general may be ``Indian lands'' (because they may be ``supervised by a 
tribe'' for purposes of SMCRA) is properly addressed in a rulemaking; 
but whether specific off-reservation allotted lands are actually 
supervised by a particular tribe is best addressed on a case-by-case 
basis because of the potentially complex issues, law, and facts. We 
believe that this position is reasonable and continues to be valid.
    NMA argues or implies that the proposed rule would conflict with a 
1985 settlement that we entered with NMA, and would conflict with the 
intent of Congress.
    Our interpretation of the 1985 settlement has not changed. See 
discussion supra of 54 FR 22182 (May 22, 1984). Neither the proposed 
rule nor this decision not to adopt the proposed rule is intended to 
change our interpretation of the 1985 settlement. As discussed above, 
we do not agree that the proposed rule or our decision not to adopt the 
proposed rule conflicts with the intent of Congress.

VII. What Is the Effect of This Notice?

    We reach no conclusions on the Indian lands status under SMCRA of 
Navajo allotments in New Mexico. We intend this notice to provide 
guidance for any pending or subsequent action concerning the Indian 
lands status of allotted lands, but in any such action we will consider 
arguments or information concerning the merits or applicability of this 
approach. We intend this notice to aid interested persons in 
determining what information may be relevant in such action. Further, 
we intend to advise interested persons of the interpretation of 
existing law that we anticipate implementing in any such action. See, 
e.g., Christensen v. Harris County, 529 U.S. 576 (2000); Stinson v. 
United States, 508 U.S. 36 (1993); Williams v. United States, 503 U.S. 
193 (1992); Pacific Gas & Electric Co. v. FPC, 506 F.2d 33 (D.C. Cir. 
1974).

VIII. How Will This Issue Be Addressed After This Notice?

A. Will This Issue Be Addressed by Case-by-Case Determinations?

    Existing procedures allow for case-by-case determinations of the 
Indian lands status of specific allotted lands in any actions in which 
that status might arise. We anticipate that any such determinations 
would most likely arise in permitting decisions that involve allotted 
lands.
    As discussed above, a case that had been pending before the Office 
of Hearings and Appeals concerning the Indian lands status of allotted 
lands

[[Page 20693]]

within the permit area of the South McKinley mine was the only 
permitting action where SMCRA jurisdiction over allotments has been 
raised. That case had been stayed pending final action on this 
rulemaking and had been continued since 1992. Pittsburg & Midway Coal 
Mining Co. v. OSM (OHA Docket No. TU-6-2-PR). The parties contemplated 
that final action on this rulemaking might obviate the need for further 
action in that case. However, as discussed above, that case has been 
dismissed without prejudice. If a similar case is filed or that case is 
re-instated, all parties would have ample opportunity to submit and 
evaluate relevant evidence, cross-examine witnesses, and submit 
arguments. Judicial review would be available.

B. Will We Propose Amendments of Our Rules To Set Out Specific 
Procedures for Case-by-Case Determinations on This Issue?

    We considered the option of developing a process for making case-
by-case determinations of whether particular allotted lands are 
supervised by a tribe in lieu of developing a national rule that would 
govern all instances. However, there are many different possible 
procedural contexts in which this issue might be raised. Devising 
amendments to all the procedural rules under which this issue might be 
raised, in order to specify how such a determination would be 
addressed, would not be appropriate in light of the low probability 
that any particular procedure might be used for such a determination in 
the foreseeable future.

    Dated: April 5, 2007.
C. Stephen Allred,
Assistant Secretary, Land and Minerals Management.
[FR Doc. E7-7647 Filed 4-24-07; 8:45 am]
BILLING CODE 4310-05-P


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